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HomeMy WebLinkAbout04-4810IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WILBUR R. GORDON, JR., Plaintiff No. 2004 - Y 9-1 V. SHANNE L. GORDON, Defendant CIVIL ACTION - LAW (In Divorce) NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take prompt action. You are warned that if you fail to do so, the case may proceed without you and a decree of divorce or annulment may be entered against you by the Court. A judgment may also be entered against you for any other claim or relief requested in these papers by the Plaintiff. You may lose money or property or other rights important to you, including custody or visitation of your children. When the ground for the divorce is indignities or irretrievable breakdown of the marriage, you may request marriage counseling. A list of marriage counselors is available in the Office of the Prothonotary at the Cumberland County Court House, High and Hanover Street, Carlisle, Pennsylvania. IF YOU DO NOT FILE A CLAIM FOR ALIMONY, DIVISION OF PROPERTY, LAWYER'S FEES OR EXPENSES BEFORE A DIVORCE OR ANNULMENT IS GRANTED, YOU MAY LSE THE RIGHT TO CLAIM ANY OF THEM. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 (717) 249-3166 SAIDIS SNUFF, FLOWER & LINDSAY ArrORNRYS•AT-LAW 26 W. High Street Carlisle, PA SAIDIS, SHUFF, LOR&.LINDSAY By: D(b " I i dray Gil ' h M?1Ely, Esqui Supreme Cowl ID # 87954 26 West High Street Carlisle, PA 17013 (717) 243-6222 Attorneys for Plaintiff 7. Plaintiff has been advised of the availability of marriage counseling and the Plaintiff may have the right to request that the Court require the parties to participate in counseling. Having been so advised Plaintiff does not desire the Court to order counseling. See Plaintiff's Affidavit attached hereto as Exhibit "A" and incorporated herein by reference. 8. The marriage is irretrievably broken. The foregoing facts are averred under Sections 3301(c) or 3301(d) of the Divorce Code of 1980, as amended. WHEREFORE, Plaintiff requests Your Honorable Court enter a Decree in Divorce, thereby divorcing Plaintiff and Defendant from the bonds of matrimony. COUNT II - EQUITABLE DISTRIBUTION 9. The allegations in Paragraphs One through Eight, inclusive, are made a part hereof and incorporated herein by reference. 10. Plaintiff and Defendant have acquired property, both real and personal, during their marriage. WHEREFORE, Plaintiff requests this Honorable Court determine the extent of the marital assets and liabilities and order an equitable distribution thereof. Respectfully submitted, SAIDIS SHUFF, FLOWER & LINDSAY ATTORNEYS-AT-LAW 26 W. High Street Carlisle, PA Date: aw1?. I_. , 0?3? Y-aV SA IS, SHUFF, F OW c4 LINDSA By: AU I in say Gi e.lay, a 6 Es lr Su c u Court ID # 87954 26 West High Street Carlisle, PA 17013 (717) 243-6222 Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WILBUR R. GORDON, JR., Plaintiff V. SHANNE L. GORDON,. Defendant No. 2004 - CIVIL ACTION - LAW (In Divorce) COMPLAINT UNDER SECTION 3301(c) OR 3301(d) OF THE DIVORCE CODE COUNT I - DIVORCE 1. Plaintiff is Wilbur R. Gordon, Jr., who currently resides at 302 Juniper Street, Carlisle, Cumberland County, Pennsylvania. 2. Defendant is Shanne L. Gordon, who currently resides at 502 North Earl Street, Shippensburg, Cumberland County, Pennsylvania. 1 Plaintiff and Defendant have been bona fide residents in the Commonwealth for SAIDIS SHUFF FLOWER & LINDSAY ATTORNEYS-AT-LAW 26 W. High Street Carlisle, PA at least six (6) months immediately previous to the filing of this Complaint. 4. Pennsylvania. 5. 2004. 6. Plaintiff and Defendant were married on June 4, 1994 in Cumberland County, Plaintiff and Defendant have been living separate and apart since August 20, There have been no prior actions of divorce or for annulment between the parties. AFFIDAVIT I, Wilbur R. Gordon, Jr., being duly sworn according to law, depose and say: (1) I have been advised of the availability of marriage counseling and understand that I may request that the court require that my spouse and I participate in counseling. (2) I understand that the court maintains a list of marriage counselors in the Prothonotary's Office, which list is available to me upon request. (3) Being so advised, I do not request that the court require that my spouse and I participate in counseling prior to a divorce decree being handed down by the court. I understand that false statements herein are made subject to the penalties of I8 Pa. C.S. Section 4904 relating to unworn falsification to authorities. Dated: V13?fb?( Wilbur R. Gord , Jr., Plain f SAIDIS SHUFF, FLOWER & LINDSAY ArrORNEYS•AT-LAW 26 W. High Street Carlisle, PA VERIFICATION I verify that the statements made in this Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unworn falsification to authorities. Dated: 9/Z 3 /0 y ? /-?I/- Wilbur R. Gor Jr., Plaintiff SAIDIS SHUFF, FLOWER & LINDSAY ATFURNEYS•AT•LAW 26 W. High Street Carlisle, PA _? ?? ? ? \ ? ? `p ?o ?? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA WILBUR R. GORDON, JR., Plaintiff V. SHANNE L. GORDON, Defendant No. 2004 - 4810 CIVIL ACTION - LAW (In Divorce) ACCEPTANCE OF SERVICE 1 accept service of the Complaint in Divorce on behalf of my client, Shanne L. Gordon, and I further certify that I am authorized to do so. Dated: w By: -2-- K E. Rominger, Esquire RomfNGER, BAYLEY & WHARE 155 South Hanover Street Carlisle, Pennsylvania 17013 Attorneys for Defendant SAIDIS SHUFF, FLOWER & LINDSAY 26 W. High Street Carlisle, PA ? o Z7ui m o m r_ cn Fq A C CI7 - WILBUR R. GORDON, JR., Plaintiff V. SHANNE L. GORDON, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2004-4810 IN DIVORCE PLAINTIFF'S AFFIDAVIT OF CONSENT 1. A Complaint in Divorce under § 3301(c) of the Divorce Code was filed on September 23, 2004. 2. The marriage of plaintiff and defendant is irretrievably broken and ninety days have elapsed from the date of feting and service of the Complaint. 3. 1 consent to the entry of a final Decree in Divorce after service of notice of intention to request entry of the Decree. I verify that the statements made in this Affidavit are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. 4904 relating to unswom falsification to authorities. Date: l t 0-7 . _ Wilbur R. Gordon, . 1. I consent to the entry of a final Decree of Divorce without notice. 2. 1 understand that I may lose rights concerning alimony, division of property, lawyer's fees or expenses if I do not claim them before a divorce is granted. 3. 1 understand that I will not be divorced until a Divorce Decree is entered by the SAMIS, I.rNDSAY 26 west High Street Carlisle, PA Court and that a copy of the Decree will be sent to me immediately after it is filed with the Prothonotary. I verify that the statements made in this Affidavit are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. 4904 relating to unswom falsificati n to authorities. Date: 7111'116 `7 Wilbur R. Gordo , J . to CD ? ? tV ............ . .... WILBUR R. GORDON, JR. vs Case No. 2004-4810 SHANNE L. GORDON To the Court: Statement of Intention to Proceed Wilbur R. Gordon, Jr. intends toprocee 'ththe v pt nedmatter. Print Name Carol J. Lindsay, Esq. Sign Name October 30, 2007 Attorney for Plainti f Date: Explanatory Comment The Supreme Court of Pennsylvania has promulgated new Rule of Civil procedure 230.2 governing the termination of inactive cases and amended Rule of Judicial Administration 1901. Two aspects of the recommendation merit comment. 1. Rule of civil Procedure New Rule of Civil Procedure 230.2 has been promulgated to govern the termination of inactive cases within the scope of the Pennsylvania Rules of Civil Procedure. The termination of these cases for inactivity was previously governed by Rule of Judicial Administration 1901 and local rules promulgated pursuant to it. New Rule 230.2 is tailored to the needs of civil actions. It provides a complete procedure and a uniform statewide practice, preempting local rules. This rule was promulgated in response to the decision of the Supreme Court in Shop Y. Eagle, 551 Pa. 360,710 A.2d 1104 (1998) in which the court held that "prejudice to the defendant as a result of delay in prosecution is required before a case may be dismissed pursuant to local rules implementing Rule of Judicial Administration 1901." Rule of Judicial Administration 1901(b) has been amended to accommodate the new rule of civil procedure. The general policy of the prompt disposition of matters set forth in subdivision (a) of that rule continues to be applicable. II Inactive Cases The purpose of Rule 230.2 is to eliminate inactive cases from the judicial system. The process is initiated by the court. After giving notice of intent to terminate an action for inactivity, the course of the procedure is with the parties. if the. pa ties do no! wish to pL suit the.cacn, they v411 tzkv no action and "the Prothonotary shall enter an. order as of course terminating the matter with prejudice for failure to prosecute:" If a party wishes to pursue the matter, he or she will file a notice of intention to proceed and the action shall continue. a. Where the action has been terminated If the action is terminated when a party believes that it should not have been terminated, that party may. .proceed under Rulc230(d) for relief from the order of termination. An example of such an occurrence might be the termination of a viable action when the aggrieved party did not receive the notice of intent to terminate and thus did not timely file the notice of intention to proceed. The timing of the filing of the petition to reinstate the action is important. If the petition is filed within thirty days of the entry of the order of termination on the docket, subdivision (d)(2) provides that the court must grant the petition and reinstate the action. If the petition is filed later than the thirty-day period, subdivision (d)(3) requires that the plaintiff must make a show in to the court that the petition was promptly filed and that there is a reasonable explanation or legitimate excuse both for the failure to file the notice of intention to proceed prior to the entry of the order of termination on the docket and for the failure to file the petition within the thirty-day period under subdivision (d)(2). B. Where the action has not been terminated An action which has not been terminated but which continues upon the filing of a notice of intention to proceed may have been the subject of inordinate delay. In such an instance, the aggrieved party may pursue the remedy of a common law non pros which exits independently of termination under Rule 230.2. c - F ..-I ' ' .. FT 1 17k ? 3 J -p L? WILBUR R. GORDON, JR., Plaintiff V. SHANNE L. GORDON, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2004-4810 IN DIVORCE AFFIDAVIT UNDER SECTION 3301(d) OF THE DIVORCE CODE 1. The parties to this action separated on August 20, 2004 and have continued to live separate and apart for a period of at least two years. 2. The marriage is irretrievably broken. 3. 1 understand that I may lose rights concerning alimony, division of property, lawyer's fees or expenses if I do not claim them before a divorce is granted. I verify that the statements made in this affidavit are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. Dated: I VVIIDUF K SAMIS, FLOWER & LINDSAY 26 West High Street Carlisle, PA g d rii .? WILBUR R. GORDON, JR., Plaintiff V. SHANNE L. GORDON, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2004-4810 IN DIVORCE PROPERTY SETTLEMENT AND SEPARATION AGREEMENT THIS AGREEMENT made this day of SG ?teA D t-r , 2007, between WILBUR R. GORDON, JR., of 2738 Falling Spring Road, Chambersburg, Franklin County, Pennsylvania, hereinafter referred to as Husband, and SHANNE L. GORDON, of 502 North Earl Street, Shippensburg, Cumberland County, Pennsylvania, hereinafter referred to as Wife. RECITALS: R.1: The parties hereto are husband and wife, having been joined in marriage on June 4, 1994, in Cumberland County, Pennsylvania; and R.2: A Complaint for Divorce has been filed in the Court of Common Pleas of Cumberland County, Commonwealth of Pennsylvania, to Number 2004-4810, Civil Term; and R.3: The parties hereto desire to settle fully and finally their respective financial and property rights and obligations including, but not limited, of all matters between them relating to the ownership of real and personal property, claims for spousal support, alimony, alimony pendente lite, counsel fees and costs, and the settling of any and all claims and possible claims against the other or against their respective estates. NOW THEREFORE, in consideration of the covenants and promises hereinafter to be mutually kept and performed by each party, as well as for other good and valuable consideration and intending to be legally bound, it is agreed as follows: 1 (1) SEPARATION: It shall be lawful for each party at all times hereafter to live separate and apart from the other party at such place or places as he or she from time to time may choose or deem fit, free from any control, restraint or interference from the other. Neither party will molest the other or endeavor to compel the other to cohabit or dwell with him or her by any legal or other proceeding. Each party shall be free of the interference, authority or contact by the other as if he or she was single and unmarried except as maybe necessary to carry out the terms of this agreement. (2) DIVORCE: The parties acknowledge that the marriage is irretrievably broken and that they will secure a mutual consent no-fault divorce decree in the above-captioned divorce action. Upon the execution of this agreement, the parties shall execute and file an Affidavit of Consent and Waiver of Notice Forms, necessary to finalize said divorce. Husband will file a Praecipe to transmit the record so that the Decree in Divorce can be entered. (3) DEBT: A. Marital Debt: Husband and Wife acknowledge and agree that at the time of their separation, there was approximately $45,000.00 in credit card debt, none of which was in joint names. Wife discharged the credit card debt in her name in the amount of approximately $36,000.00 and Husband is solely responsible for any credit card debt in his own name and, in addition, for his student loans. With regard to any such debt, the parties will hereby indemnify and hold the other harmless. B: Post Separation Debt: In the event that either party contracted or incurred any debt since the date of separation on August 20, 2004, the party who incurred said debt shall be responsible for the payment thereof regardless of the name in which the debt may have been incurred. C: Future Debt: From the date of this agreement neither party shall contract or incur 2 any debt or liability for which the other party or his or her property or estate might be responsible and shall indemnify and save the other party harmless from any and all claims or demands made against him or her by reason of debts or obligations incurred by the other party (4) MOTOR VEHICLES: Each party relinquishes any right, title and interest he or she may have to any and all motor vehicles currently in possession of the other party. Within ten days of the date of this agreement each party shall execute any documents necessary to have said vehicles properly registered in the other party's name with the Pennsylvania Department of Transportation. Each party shall assume full responsibility of any encumbrance on the motor vehicle received by said party, and shall hold harmless and indemnify the other party from any loss thereon. Wife has received or will have received the 1999 Ford Windstar as her own separate property. Husband has received or will have received the 1996 Ford Escort wagon and a 1982 Yamaha Vision 550. (5) TANGIBLE PERSONAL PROPERTY: The parties hereto mutually agree that they have effected a satisfactory division of the furniture, household furnishings, appliances, tools and other household personal property between them, and they mutually agree that each party shall from and after the date hereof be the sole and separate owner of all such property presently in his or her possession whether said property was heretofore owned jointly or individually by the parties hereto. This agreement shall have the effect of an assignment or bill of sale from each party to the other for such property as may be in the individual possession of each of the parties hereto. (6) INTANGIBLE PERSONAL PROPERTY: Each party hereby relinquishes any right, title or interest he or she may have in or to any intangible personal property currently titled in the name of or in the possession of the other party, including, but not limited to, stocks, bonds, insurance, bank accounts, individual retirement accounts, employment benefits including retirement accounts, savings plans, pension plans, stock plans, 401 K plans and the like. By 3 Domestic Relations Order prepared by Wife's counsel, Husband will transfer to Wife 30% of his disposable retired military pay. Counsel will prepare the required Domestic Relations Order within thirty (30) days of this Agreement and will transmit the Order to DFAS immediately so that a direct payment from DFAS to Wife will not be unduly delayed. (7) WAIVER OF ALIMONY: The parties acknowledge that each has income and assets satisfactory to his and her own reasonable needs. Each party waives any claim he or she may have one against the other for alimony, spousal support or alimony and alimony pendente lite. Nevertheless, Husband will pay to Wife as alimony $411.00 per month commencing September 2007 and continuing every month thereafter until such time as DFAS does commence a direct payment to Wife of her share of Husband's military pension. In the event that an overpayment of the amount of alimony is paid, Wife will refund said overpayment to Husband within ten (10) days of receipt and notice of its payment in error. Alimony for such a term will be nonmodifiable except upon the death of Wife or Husband and shall be taxable to Wife and deductible to Husband on his Federal income tax returns. (8) ADVICE OF COUNSEL: The parties hereto acknowledge that each has been notified of his or her right to consult with counsel of his or her choice, and have been provided a copy of this agreement with which to consult with counsel. Husband is represented by Carol J. Lindsay, Esquire, and Wife is represented by Karl Rominger, Esquire. Each party acknowledges and accents that this agreement is, under the circumstances, fair and equitable, and that it is being entered into freely and voluntarily after having received such advice and with such knowledge as each has sought from counsel, and the execution of this agreement is not the result of any duress or undue influence, and that it is not the result of any improper or illegal agreement or agreements. Each party shall pay his or her own attorney for all legal services rendered or to be rendered on his or her behalf. 4 (9) ADDITIONAL INSTRUMENTS: Each of the parties shall from time to time, at the request of the other, execute, acknowledge and deliver to the other party any and all further instruments that may be reasonably required to give full force and effect to the provisions of this Agreement. (10) INCOME TAX: The parties have heretofore filed joint Federal and State Tax returns. Both parties agree that in the event any deficiency in Federal, state or local income tax is proposed, or assessment of any such tax is made against either of them, each will indemnify and hold harmless the other from and against any loss or liability for any such tax deficiency or assessment and any interest, penalty and expense incurred in connection therewith. Such tax, interest, penalty or expense shall be paid solely and entirely by the individual who is finally determined to be the cause of the misrepresentations or failures to disclose the nature and extent of his or her separate income on the aforesaid joint returns. (11) BANKRUPTCY: The parties hereby agree that the provisions of this Agreement shall not be dischargeable in Bankruptcy and expressly agree to reaffirm any and all obligations contained herein. In the event a party files such bankruptcy and pursuant thereto obtains a discharge of any obligations assumed hereunder, the other party shall have the right to declare this Agreement to be null and void and to terminate this Agreement in which event the division of the parties' marital assets and all other rights determined by this Agreement including alimony shall be subject to court determination the same as if this Agreement had never been entered into. (12) COMPLETE DISCLOSURE: The parties do hereby warrant, represent, acknowledge and agree that each is fully and completely informed of, and is familiar with, the wealth, real and personal property, estate and assets, earnings and income of the other and has made any inquiry he or she desires into the income or estate of the other and received any such 5 information requested. Each has made a full and complete disclosure to the other of his and her entire assets, liabilities, income and expenses and any further enumeration or statement thereof in this Agreement is specifically waived. (13) RIGHTS AND RESPONSIBILITIES: Husband and Wife acknowledge that each of them has read and understand his and her rights and responsibilities under this Agreement and that they have executed this Agreement under no compulsion to do so but as a voluntary act. (14) FULL SETTLEMENT: Except as herein otherwise provided, each party hereby releases the other from any and all claims, or demands up to the date of execution hereof. It is further specifically understood and agreed by and between the parties hereto that each party accepts the provisions herein made in lieu of and in full settlement and satisfaction of any and all of said party's rights against the other for past, present and future claims on account of support, maintenance, alimony, alimony pendente lite, counsel fees, costs and expenses, equitable distribution of marital property and any other claims of the party, including all claims which have been raised or may be raised in an action for divorce. (15) RELEASE OF ALL CLAIMS: Except as may be otherwise specifically provided in this Agreement, Husband and Wife, for themselves, their heirs, representatives and assigns, each hereby forever releases, remises, discharges and quitclaims the other, and such other's heirs, representatives, assigns and estate, from and with respect to the following: A. All liability, claims, causes of action, damages, costs, contributions and expenses or demands whatsoever in law or in equity; B. All rights, title, interest or claims in or to any property of the other, whether real, personal or mixed and whether now owned or hereafter acquired; C. All rights of courtesy and dower and all claims or rights in the nature of courtesy and dower; 6 D. All widow or widower's rights; E. All right, title, interest or claim in or to the other's estate, whether now owned or hereafter acquired, including but not limited to all rights or claims: (1) to take against the other's will; (2) under the laws of intestacy; (3) to a family exemption or similar allowance; and (4) all other rights or authority to participate or intervene in a deceased spouse's estate in any way, whether arising under the laws of Pennsylvania or any other country, territory, state or political subdivision. F. All rights or claims to any accounting; G. All rights, claims, demands, liabilities and obligations arising out of or in connection with the marital relationship or the joint ownership of property, whether real, personal or mixed; H. All rights, claims, demands, liabilities and obligations arising under the provisions of the Pennsylvania Divorce Code, as the same may be amended from time to time, and under the provisions of any similar statute enacted by any other country, state, territory or political subdivision; 1. All rights, claims, demands, liabilities and obligations each party now has, or may hereafter have, against or with respect to the other. (16) GOVERNING LAW: This Agreement shall be construed under the law of the Commonwealth of Pennsylvania. If any provision of this Agreement is determined to be invalid or unenforceable, all other provisions shall continue in full force and effect. (17) INCORPORATION INTO DECREE: In the event that either of the parties shall 7 recover a final judgment or decree of absolute divorce against the other in a court of competent jurisdiction, the provisions of this Agreement may be incorporated by reference or in substance but shall not be merged into such judgment or decree and this Agreement shall survive any such final judgment or decree of absolute divorce and shall be entirely independent thereof. (18) BREACH: In the event that either party breaches any provision of this Agreement, he or she shall be responsible for any and all costs incurred to enforce the Agreement, including, but not limited to, court cost and counsel fees of the other party. In the event of breach, the other party shall have the right, at his or her election; to sue for damages for such breach or to seek such other and additional remedies as may be available to him or her. (19) ENTIRE UNDERSTANDING: This Agreement constitutes the entire understanding between the parties and there are no covenants, conditions, representations, or agreements, oral or written, of any nature whatsoever, other than those herein contained. (20) AGREEMENT BINDING ON PARTIES AND HEIRS: This Agreement shall bind the parties hereto, their respective heirs, executors and assigns. IN WITNESS WHEREOF, the parties hereto intending to be legally bound have hereunto set their hands and seals the day and year first written above. WITNESS: Wilbur R. Gordon r. -Y/Aw" a e L. on 8 C 3 :01 WV OZ 030 LOOZ 3,Hl JO 331:11 0-0311J j sw, WILBUR R. GORDON, JR., IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW NO. 2004-4810 SHANNE L. GORDON, Defendant IN DIVORCE AFFIDAVIT OF SERVICE I, Carol J. Lindsay, Esquire, being duly sworn according to law, hereby deposes and says that on November 29, 2007, 1 served a true and correct copy of Notice of Intention to Request Entry of a §3301(d) Divorce Decree upon Karl Rominger, Esquire by mailing those document to the his address at 155 South Hanover Street, Carlisle, PA 17013, by regular U.S. Mail. SAIDIS, FLOWER & LINDSAY Carol J. Linds I e Supreme Co ID o. 44693 26 West Hig t Carlisle, PA 17013 717-243-6222 Dated: December 20, 2007 SAMIS FLOWER ,& LIl4DSAY 26 West High Street Carlisle, PA FLOWER ? LINDSAY N ATV 26 West High Street Carlisle, PA WILBUR R. GORDON, JR., IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW NO. 2004-4810 SHANNE L. GORDON, Defendant IN DIVORCE NOTICE OF INTENTION TO REQUEST ENTRY OF 3301(d) DIVORCE DECREE To: Shanne L. Gordon c/o Karl E. Rominger, Esquire Rominger, Bayley & Whare 155 South Hanover Street Carlisle, Pennsylvania 17013 You have been sued in an action for divorce. You have failed to answer the complaint or file a counter-affidavit to the §3301(d) affidavit. Therefore, on or after December 17, 2007, the other party can request the court to enter a final decree in divorce. If you do not file with the Prothonotary of the court an answer with your signature notarized or verified or a counter-affidavit by the above date, the court can enter a final decree in divorce. A counter-affidavit which you may file with the Prothonotary of the court is attached to this notice. Unless you have already filed with the court a written claim or economic relief, you must do so by the above date or the court may grant the divorce and you will lose forever the right to ask for economic relief. The filing of the form counter-affidavit alone does not protect your economic claims. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 (717) 249-3166 SAIDIS, FLOYVER & LINDSAY Carol J. Lindsay;` squire Supreme CouO?Z No. 44693 26 West High Street Carlisle, PA 17013 717-243-6222 r•a c? 'TJ L'7'; D M f17 Cfa : -; C7 rj I' '"' CS WILBUR R. GORDON, JR., Plaintiff V. SHANNE L. GORDON, Defendant To the Prothonotary: IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2004-4810 IN DIVORCE PRAECIPE TO TRANSMIT RECORD Kindly transmit the record, together with the following information, to the Court for entry of a Decree in Divorce: 1. Grounds for Divorce: Irretrievable breakdown under Section 3301(d)(1) of the Divorce Code. 2. Date and manner of service of the Complaint: Defendant's counsel accepted service of the Complaint on September 24, 2004. An Acceptance of Service was filed with the Court on September 27, 2007. 3. Date of the execution of the Affidavit required by Section 3301(d) of the Divorce Code:November 28, 2007 ; Date of filing and service of the Plaintiff's Affidavit upon the Respondent: November 29, 2007 4. Related claims pending: None. The terms of the Property Settlement of September 11, 2007 resolved all economic issues; 5. Date Plaintiff's Waiver of Notice was filed with the Prothonotary: NIA; Date Defendant's Waiver of Notice was filed with the Prothonotary: NIA. SAIDIS, FLOWER-& LINDSAY Carol J. Lind ay, gLfire`Z' Supreme Co No. 44693 26 West High Street Carlisle, PA 17013 717-243-6222 Attorney for P 1Q.,-n+ R t"a ra 0 '` `?_., C `rr 7 ray --o rn ? {e°, r C r4 j C) .4 CO -< IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY STATE OF PENNA. WILBUR R. GORDON, JR. -y~ ~.`VERSUS SHANNE L. GORDON No. 04-4810 DECREE IN DIVORCE AND NOW, bG.C. 2-71 , 2C 1, IT IS ORDERED AND WILBUR R. GORDON, JR. DECREED THAT PLAINTIFF, AND SHANNE L. GORDON DEFENDANT, ARE DIVORCED FROM THE BONDS OF MATRIMONY. THE COURT RETAINS JURISDICTION OF THE FOLLOWING CLAIMS WHICH HAVE BEEN RAISED OF RECORD IN THIS ACTION FOR WHICH A FINAL ORDER HAS NOT YET BEEN ENTERED; The terms of the Separation and Property Settlement Agreement dated September 11, BY THE CO PROTHONOTARY 2007 are incorporated, but not merged, into this Decree in Divorce. i t WILBUR R. GORDON, JR., : IN THE COURT OF COMMON PLEAS OF Respondent/Plaintiff :CUMBERLAND COUNTY, PENNSYLVANI G v. :CIVIL ACTION LAW -r~3 ~, SHANNE L. GORDON, x~.~ Petitioner/Defendant : N0.2004-5900 ~~'r- i ,,,,~ ~ r Honorable J Wesley Oler y'~,~ ~ z~ T~' f w PETITION TO ENFORCE MARITAL SETTLEMENT AGREEMENT-{ N "' --~ ~~ ~~r~ ~s :~a 1. Petitioner is the Plaintiff in .this matter and herein referred to as The divorce was finalized by Affidavits. Divorce Degree was signed by Hon. J. Westley Oler, ~Tr. on December 28, 2007. 2. A Marital Settlement Agreement, (herein attached as Exhibit A) was entered i on September 11, 2007 which allowed for Petitioner and Respondent to settle all economic claims. More specifically paragraph #6 states what parties agreed in regard to distribution of the Respondent's "disposable retired military pay". Accordingly, Petitioner is receive 30% of said military pay. 3. Respondent has not cooperated with Petitioner and/or her attorney in providi information for active participation in a Qualified Domestic Relations Order being transmitted Defense Finance and Accounting Services resulting in unduly delay of payment to Petitioner. 4. Your Petitioner wishes to have an order of court whereby Respondent adjudicated as in contempt for not cooperating as referenced above in paragraph 3. 5. Your petitioner seeks $500.00 counsel fees for this Petition and any additi fees should a hearing become necessary due to the Defendant's ongoing refusals to comply to to is the Martial Settlement Agreement. i ~ r WHEREFORE, your Petitioner respectfully requests that this Honorable Court hearing to enforce the Marital Settlement Agreement and award petitioner attorney fees and grant other relief this Court deems appropriate and order Respondent to actively participate in the execution of a QDRO to effectuate the Marital Settlement Agreement, and pay all amounts owed to Petitioner. Date: ~ 1 Respectfully submitted, ROMINGER & ASSOCIATES 1 E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Defendant •- WILBUR R. CORDON, JR., Respondent/Plaintiff v. SHANNE L. CORDON, Petitioner/Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVAN CIVIL ACTION LAW N0.2004-5900 Honorable J Wesley Oler CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, attorney for Petitioner, do hereby certify that I this day copy of the Petition to Enforce Martial Settlement Agreement on the following by depositing the United States Mail, first class postage prepaid, at Carlisle, Pennsylvania, addressed as follows Wilbur R. Gordon, Jr. 525 Weaver Road Avenue Chambersburg, PA 17201 Dated: q jy/2ol Z // Respectfully submitted, ROMINGER & ASSOCIATES K 1 E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 (717)241-6070 Supreme Court ID # 81924 Attorney for Defendant a in ,. WILBUR R. GORDON, JR., RespondentlPlaintiff v. SHANNE L. GORDON, Petitioner/Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVAN CIVIL ACTION LAW N0.2004-5900 Honorable J Wesley Oler VERIFICATION I verify that the statements made in this complaint are true and correct. I understand that statements herein are made subject to the penalties of 18 Pa. Cons. Stat. § 4904 relating to falsification to authorities. Date: 9- Y- ~~~••? Shanne Gordon-Liberator WILBUR R. GORDON, JR., Plaintiff : v. SHANNE L. GORDON, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 2004-4810 IN DIVORCE PROPERTY SETTLEMENT AND SEPARATION AGREEMENT - i+. THIS AGREEMENT made this ~_ day of ~ G~'- 6 ~ _, 2007, befinre WILBUR R. GORDON, JR., of 2738 Falling Spring Road, Chambersburg, Franklin Coun , Pennsylvania, hereinafter referred to as Husband, and SHANNE L. GORDON, of 502 North E I Street, Shippensburg, Cumberland County, Pennsylvania, hereinafter referred to as Wife. RECITALS: R.1: The parties hereto are husband and wife, having been joined in man-iage on Jun 4, 1994, in Cumberland County, Pennsylvania; and R.2: A Complaint for Divorce has been filed in the Court of Common Pleas f Cumberland County, Commonwealth of Pennsylvania, to Number 2004-4810, Civil Term; and R.3: The parties hereto desire to settle fully and finally their respective financial an property rights and obligations including, but not limited, of all matters between them relating t the ownership of real and personal property, claims for spousal support, alimony, alimon pendente life, counsel fees and costs, and the settling of any and all claims and possible claim against the other or against their respective estates. NOW THEREFORE, in consideration of the covenants and promises hereinafter to b mutually kept and performed by each party, as well as for other good and valuable consideratio and intending to be legally bound, it is agreed as follows: i ~- i (1) SEPARATION: It shall be lawful for each party at all times hereafter to I separate and apart from the other party at such place or places as he or she from time to ti may choose or deem fit, free from any control, restraint or interference from the other. Neitl party will molest the other or endeavor to compel the other to cohabit or dwell with him or her any legal or other proceeding. Each party shall be free of the interference, authority or contact the other as if he or she was single and unmarried except as maybe necessary to carry out terms of this agreement. (2) DIVORCE: The parties acknowledge that the marriage is irretrievably broken that they will secure a mutual consent no-fault divorce decree in the above-captioned divor action. Upon the execution of this agreement, the parties shall execute and file an Affidavit Consent and Waiver of Notice Forms, necessary to finalize said divorce. Husband will file Praecipe to transmit the record so that the Decree in Divorce can be entered. (3) DEBT: A. Marital Debt: Husband and Wife acknowledge and agree that at the time of separation, there was approximately $45,000.00 in credit card debt, none of which was in jc names. Wife discharged the credit card debt in her name in the amount of approximate $36,000.00 and Husband is solely responsible for any credit card debt in his own name and, addition, for his student loans. With regard to any such debt, the parties will hereby indemnify a hold the cther harmless. B: Post Separation Debt: In the event that either party contracted or incurred a debt since the date of separation on August 20, 2004, the party who incurred said debt shall responsible for the payment thereof regardless of the name in which the debt may have incurred. C: Future Debt: From the date of this agreement neither party shall contract or inc~r z any debt or liability for which the other party or his or her property or estate might be responsit~le and shall indemnify and save- the other party harmless from any and all claims or demands ma~e against him or her by reason of debts or obligations incurred by the other party (4) MOTOR VEHICLES: Each party relinquishes any right, title and interest he or s may have to any and all motor vehicles currently in possession of the other party. Within ten d. of the date of this agreement each party shall execute any documents necessary to have s vehicles properly registered in the other party's name with the Pennsylvania Department Transportation. Each party shall assume full responsibility of any encumbrance on the me vehicle received by said party, and shall hold harmless and indemnify the other party from loss thereon. Wife has received or will have received the 1999 Ford Windstar as her c separate property. Husband has received or will have received the 1996 Ford Escort wagon a 1982 Yamaha Vision 550. (5) TANGIBLE PERSONAL PROPERTY: The parties hereto mutually agree that have effected a satisfactory division of the furniture, household furnishings, appliances, tools a other household personal property between them, and they mutually agree that each party sf` from and after the date hereof be the sole and separate owner of all such property presently in I or her possession whether said property was heretofore owned jointly or individually by the parti hereto. This agreement shall have the effect of an assignment or bill of sale from each party the other for such property as may be in the individual possession. of each of the parties hereto: (6) INTANGIBLE PERSONAL PROPERTY: Each party hereby relinquishes any title or interest he or she may have in or to any intangible personal property currently titled in t name of or in the possession of the other party, including, but not limi#ed to, stocks, bone insurance, bank accounts, individual retirement accounts, employment benefits includi retirement accounts, savings plans, pension plans, stock plans, 401 K plans and the like. 3 _- _ _.. r m / i ~, 1~ Domestic Relations Order prepared by Wife's counsel, Husband will transfer tc~'Wife 30% of is `,t _. s disposable retired military pay. Counsel will prepare the required Domestic Relations Order wit in thirty (30) days of this Agreement and will transmit the Order to,DFAS isxmediately so that a payment from DFAS to Wife will not be unduly delayed. (7) WAIVER OF ALIMONY: The parties that each has income a assets satisfactory to his and her own reasonable needs. Each party waives any claim he she may have one against the other for alimony, spousal support or alimony and alimc pendente lite. Nevertheless, Husband will pay to Wife as alimony $411.00 per moi commencing September 2007 and continuing every month thereafter until such time as DF~ does commence a direct payment to Wife of her share of Husband's military pension. In 1 event that an overpayment of the amount of alimony is paid, Wife will refund said overpaymE to Husband within ten (10) days of receipt and notice of its payment in error. Alimony for su a term will be nonmodifiable except upon the death of Wife or Husband and shall be taxable Wife and deductible to Husband on his Federal income tax returns. (8) ADVICE OF COUNSEL: The parties hereto acknowledge that each has notified of his or her right to consult with counsel of his or her choice, and have been provided a copy of this agreement with which to consult with counsel. Husband is represented by Carol Lindsay, Esquire, and Wife is represented by Karl Rominger, Esquire. Each party acknowledg s and accepts that this agreement is, under the circumstances, fair anc~ equitable, and that it s being entered into freely and voluntarily after having received such advice and with su h knowledge as each has sought from counsel, and the execution of this agreement is not the res It of any duress or undue influence, and that it is not the result of any improper or illegal agreeme t or agreements. Each parry shall pay his or her own attorney for all legal services rendered or t be rendered on his or her behalf. 4 (9) ADDITIONAL INSTRUMENTS: Each of the parties shall from time to time, at t request of the other, execute, acknowledge and deliver to the other party any and all furtF instruments that may be reasonably required to give full force and effect to the provisions of tt Agreement. (10) INCOME TAX: The parties have heretofore filed joint Federal and State T returns. Both parties agree that in the event any deficiency in Federal, state or local income tax proposed, or assessment of any such tax is made against either of them, each will indemnify ai hold harmless the other from and against any loss or liability for any such tax deficiency assessment and any interest, penalty and expense incurred in connection therewith. Such t~ interest, penalty or expense shall be paid solely and entirely by the individual who is fins determined to be the cause of the misrepresentations or failures to disclose the nature and exte of his or her separate income on the aforesaid joint returns. (11) BANKRUPTCY: The parties hereby agree that the provisions of this Agreeme shall not be dischargeable in Bankruptcy and expressly agree to reaffirm any and all obligatio contained herein. In the event a party files such bankruptcy and pursuant thereto obtains discharge of any obligations assumed hereunder, the other party shall have the right to decl~ this Agreement to be null and void and to terminate this Agreement in which event the division the parties' marital assets and all other rights determined by this Agreement including alimo shall be subject to court de#erminafiion the same as if this Agreement .had never been enter{ into. (12) COMPLETE DISCLOSURE: The parties do hereby warrant, represei acknowledge and agree that each is fully and completely informed of, and is familiar with, tl wealth, real and personal property, estate and assets, earnings and income of the other and h; made any inquiry he or she desires into the income or estate of the other and received any sup 5 information requested. Each has made a full and complete disclosure to the other of his and entire assets, liabilities, income and expenses and any further enumeration or statement thereof in this Agreement is specifically waived. (13) RIGHTS AND RESPONSIBILITIES: Husband and Wife acknowledge that each of them has read and understand his and her rights and responsibilities under this Agreement that they have executed this Agreement under no compulsion to do so but as a voluntary act. (14) FULL SETTLEMENT: Except as herein otherwise provided, each party releases the other from any and all claims, or demands up to the date of execution hereof. I is further specifically understood and agreed by and between the parties hereto that each pa y accepts the provisions herein made in lieu of and in full settlement and satisfaction of any and II of said party's rights against the other for past, present and future claims on account of supp rt, maintenance, alimony, alimony pendente life, counsel fees, costs and expenses, equita le distribution of marital property and any other claims of the party, including all claims which ha e been raised or may be raised in an action for divorce. (15) RELEASE OF Al.L CLAIMS: Except as may be otherwise specifically provided din this Agreement, Husband and Wife, for themselves, their heirs, representatives and assigns, hereby forever releases, remises, discharges and quitclaims the other, and such other's representatives, assigns and estate, from and with respect to the following: A. Alf liability, claims, causes of action, .damages, costs, contributians expenses or demands whatsoever in law or in equity; B. All rights, title, interest or claims in or to any property of the other, real, personal or mixed and whether now owned or hereafter acquired; C. All rights of courtesy and dower and all claims or rights in the nature courtesy and dower; 6 ___, _ _ D. All widow or widower's rights; E. All right, title, interest or claim in or to the other's estate, whether owned or hereafter acquired, including but not limited to all rights or Gaims: (1) to take against the other's will; (2) under the laws of intestacy; (3) to a family exemption or similar allowance; and (4) all other rights or authority to participate or intervene in a deceas d spouse's estate in any way, whether arising under the laws of Pennsylvania or any other count , territory, state or political subdivision. F. All rights or claims to any accounting; G. All rights, claims, demands, liabilities and obligations arising out of or connection with the marital relationship or the joint ownership of property, whether real, persoi or mixed; H. All rights, claims, demands, liabilities and obligations arising under 1 provisions of the Pennsylvania Divorce Code, as the same may be amended from time to tin and under the provisions of any similar statute enacted by any other country, state, temtory political subdivision; I. All rights, claims, demands, liabilities and obligations each party now has, may hereafter have, against or with respect to the other. (16) GOVERNING LAW: This Agreement shall be construed under the law of t Commonwealth of Pennsylvania. If any provision of this Agreement is determined to be invalid unenforceable, all other provisions shall continue in full force and effect. (17) INCORPORATION INTO DECREE: In the event that either of the parties sh recover a final judgment or decree of absolute divorce against the other in a court of comF jurisdiction, the provisions of this Agreement may be incorporated by reference or in subs but shall not be merged into such judgment or decree and this Agreement shall survive any final judgment or decree of absolute divorce.and shall be entirely independent thereof. (18) BREACH: In the event that either party breaches any provision of this Ag he or she shall be responsible for any and all costs incurred to enforce the Agreement, includi g, but not limited to, court cost and counsel fees of the other party. In the event of breach, the of er party shall have the right, at his or her election; to sue for damages for such breach or to se k such other and additional remedies as may be available to him or her. (19) ENTIRE UNDERSTANDING: This Agreement constitutes the entire understan between the parties and there are no covenants, conditions, representations, or agreements, or written, of any nature whatsoever, other than those herein contained. (20) AGREEMENT BINDING ON PARTIES AND HEIRS: This Agreement shall the parties hereto, their respective heirs, executors and assigns. IN WITNESS WHEREOF, the parties hereto intending to be legally bound have set their hands and seals the day and year first written above. WITNESS: Wilbur R. Gordon r. a e L. on s f~ WILBUR R. GORDON, JR., IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION -LAW N O. 2004-4810 SHANNE L. GORDON, Defendant IN DIVORCE PROPERTY SETTLEMENT AND SEPARATION AGREEMENT i+. THIS AGREEPIIENT made this ~_ day of ~G e+~ b ~ , 2007, WILBUR R. GORDON, JR., of 2738 Falling Spring Road, Chambersburg, Franklin County, Pennsylvania, hereinafter referred to as Husband, and SHANNE L. GORDON, of 502 North Street, Shippensburg, Cumberland County, Pennsylvania, hereinafter referred to as Wife. RECITALS: R.1: The parties hereto are husband and wife, having been joined in marriage on J 4, 1994, in Cumberland County, Pennsylvania; and R.2: A Complaint for Divorce has been filed in the Court of Common Pleas Cumberland County, Commonwealth of Pennsylvania, to Number 2004-4810, Civil Term; and R.3: The parties hereto desire to settle fully and finally their respective financial property rights and obligations including, but not limited, of all matters between them relating the ownership of real and personal property, claims for spousal support, alimony, alimc pendenfe lite, counsel fees and costs, and the settling of any and all claims and possible clan against the other or against their respective estates. NOW THEREFORE, in consideration of the covenants and promises hereinafter to mutually kept and performed by each party, as well as for other good and valuable cons and intending to be legally bound, it is agreed as follows: i (1) SEPARATION: It shall be lawful for each party at all times hereafter to I e separate and apart from the other party at such place or places as he or she from time to ti e may choose or deem fit, free from any control, restraint or interference from the other. Neit er party will molest the other or endeavor to compel the other to cohabit or dwell with him or her y any legal or other proceeding. Each party shall be free of the interference, authority or contact y the other as if he or she was single and unmarried except as maybe necessary to carry out t e terms of this agreement. (2) DIVORCE: The parties acknowledge that the marriage is irretrievably broken a d that they will secure a mutual consent no-fault divorce decree in the above-captioned divot e action. Upon the execution of this agreement, the parties shall execute and file an Affidavit f Consent and Waiver of Notice Forms, necessary to finalize said divorce. Husband will file a Praecipe to transmit the record so that the Decree in Divorce can be entered. (3) DEBT: A. Marital Debt: Husband and Wife acknowledge and agree that at the time of th it separation, there was approximately $45,000.00 in credit card debt, none of which was in jc names. Wife discharged the credit card debt in her name in the amount of approximat $36,000.00 and Husband is solely responsible for any credit card debt in his own name and, addition, for his student loans. With regard to any such debt, the parties will hereby indemnify a ;hold the cther harmless. B: Post Separation Debt: In the event that either party contracted or incurred a debt since the date of separation on August 20, 2004, the party who incurred said debt shall responsible for the payment thereof regardless of the name in which the debt may have bey incurred. C: Future Debt: From the date of this agreement neither party shall contract or inc z any debt or liability for which the other party or his or her property or estate might be respons and shall indemnify and save the other party harmless from any and all claims or demands m. against him or her by reason of debts or obligations incurred by the other party (4) MOTOR VEHICLES: Each party relinquishes any right, title and interest he or , may have to any and all motor vehicles currently in possession of the other party. Within ten da s of the date of this agreement each party shall execute any documents necessary to have s id vehicles properly registered in the other party's name with the Pennsylvania Department of Transportation. Each party shall assume full responsibility of any encumbrance on the mo or vehicle received by said party, and shall hold harmless and indemnify the other party from a y loss thereon. Wife has received or will have received the 1999 Ford Windstar as hero n separate property. Husband has received or will have received the 1996 Ford Escort wagon a d a 1982 Yamaha Vision 550. (5) TANGIBLE PERSONAL PROPERTY: The parties hereto mutually agree that th y have effected a satisfactory division of the furniture, household furnishings, appliances, tools a other household personal property between them, and they mutually agree that each party sh from and after the date hereof be the sole and separate owner of all such property presently in or her possession whether said property was heretofore owned jointly or individually by the parti hereto. This agreement shall have the effect of an assignment or bill of sale from each party the other for such property as may be in the individual possession of each of the parties hereto: (6) INTANGIBLE PERSONAL PROPERTY: Each party hereby relinquishes any rig title or interest he or she may have in or to any intangible personal property currently titled in name of or in the possession of the other party, including, but not limited to, stocks, bor insurance, bank accounts, individual retirement accounts, employment benefits incluc retirement accounts, savings plans, pension plans, stock plans, 401 K plans and the like. 3 Domestic Relations Order prepared by Wife's counsel, Husband will transfer to Wife 30% of is disposable retired military pay. Counsel will prepare the required Domestic Relations Order wit in thirty (30) days of this Agreement and will transmit the Order to DFAS immediately so that a der ct payment from DFAS to Wife will not be unduly delayed. (7) .WAIVER OF ALIMONY: The parties acknowledge that each has income a d assets satisfactory to his and her own reasonable needs. Each party waives any claim he she may have one against the other for alimony, spousal support or alimony and alimc pendente lite. Nevertheless, Husband will pay to Wife as alimony $411.00 per moi commencing September 2007 and continuing every month thereafter until such time as DF~ does commence a direct payment to Wife of her share of Husband's military pension. In t event that an overpayment of the amount of alimony is paid, Wife will refund said overpaymE to Husband within ten (10) days of receipt and notice of its payment in error. Alimony for su a term will be nonmodifiable except upon the death of Wife or Husband and shall be taxable Wife and deductible to Husband on his Federal income tax returns. (8) ADVICE OF COUNSEL: The parties hereto acknowledge that each has be noted of his or her right to consult with counsel of his or her choice, and have been provided copy of this agreement with which to consult with counsel. Husband is represented by Carol Lindsay, Esquire, and Wife is represented by Karl Rominger, Esquire. Each party acknowledge and wccepts that this agreement is, under the circumstances, fair and equitable, and that it being entered into freely and voluntarily after having received such advice and with suc knowledge as each has sought from counsel, and the execution of this agreement is not the rest of any duress or undue influence, and that it is not the result of any improper or illegal agreeme or agreements. Each party shall pay his or her own attorney for all legal services rendered or be rendered on his or her behalf. 4 (9) ADDITIONAL INSTRUMENTS: Each of the parties shall from time to time, at request of the other, execute, acknowledge and deliver to the other party any and all fur instruments that may be reasonably required to give full force and effect to the provisions of Agreement. (10) INCOME TAX: The parties have heretofore filed joint Federal and State ' returns. Both parties agree that in the event any deficiency in Federal, state or local income tax is proposed, or assessment of any such tax is made against either of them, each will indemnify a d hold harmless the other from and against any loss or liability for any such tax deficiency r assessment and any interest, penalty and expense incurred in connection therewith. Such t x, interest, penalty or expense shall be paid solely and entirely by the individual who is fina ly determined to be the cause of the misrepresentations or failures to disclose the nature and ext t of his or her separate income on the aforesaid joint returns. (11) BANKRUPTCY: The parties hereby agree that the provisions of this Agreeme t shall not be dischargeable in Bankruptcy and expressly agree to reaffirm any and all obligatio s contained herein. In the event a party files such bankruptcy and pursuant thereto obtains a discharge of any obligations assumed hereunder, the other party shall have the right to decla e this Agreement to be null and void and to terminate this Agreement in which event the division f the parties' marital assets and all other rights determined by this Agreement including alimo y shall be subject to court determination the same as if this Agreement had never been enter d into. (12) COMPLETE DISCLOSURE: The parties do hereby warrant, represe , acknowledge and agree that each is fully and completely informed of, and is familiar with, t wealth, real and personal property, estate and assets, earnings and income of the other and h made any inquiry he or she desires into the income or estate of the other and received any suc 5 .. ( y 1 information requested. Each has made a full and complete disclosure to the other of his and entire assets, liabilities, income and expenses and any further enumeration or statement thereof in this Agreement is specifically waived. (13) RIGHTS AND RESPONSIBILITIES: Husband and Wife acknowledge that each them has read and understand his and her rights and responsibilities under this Agreement that they have executed this Agreement under no compulsion to do so but as a voluntary act. (14) FULL SETTLEMENT: Except as herein otherwise provided, each parry releases the other from any and all claims, or demands up to the date of execution hereof. It is further specifically understood and agreed by and between the parties hereto that each pa y accepts the provisions herein made in lieu of and in full settlement and satisfaction of any and II of said party's rights against the other for past, present and future claims on account of supp , maintenance, alimony, alimony pendente life, counsel fees, costs and expenses, equity le distribution of marital property and any other claims of the party, including all claims which ha e been raised or may be raised in an action for divorce. (15) RELEASE OF ALL CLAIMS: Except as may be otherwise specifically provided in this Agreement, Husband and Wife, for themselves, their heirs, representatives and assigns, hereby forever releases, remises, discharges and quitclaims the other, and such other's hei~s, representatives, assigns and estate, from and with respect to the following: A. All liability, claims, causes of action, damages, costs, contributions expenses or demands whatsoever in law or in equity; B. All rights, title, interest or claims in or to any property of the other, real, personal or mixed and whether now owned or hereafter acquired; C. All rights of courtesy and dower and all claims or rights in the nature courtesy and dower; 6 . __ _ _ _ __ __ _ ~_ ~ ~, 1 D. All widow or widower's rights; E. All right, title, interest or claim in or to the other's estate, whether owned or hereafter acquired, including but not limited to all rights or claims: (1) to take against the other's will; (2) under the laws of intestacy; (3) to a family exemption or similar allowance; and (4) all other rights or authority to participate or intervene in a deceas d spouse's estate in any way, whether arising under the laws of Pennsylvania or any other count , territory, state or political subdivision. F. All rights or claims to any accounting; G. All rights, claims, demands, liabilities and obligations arising out of or connection with the marital relationship or the joint ownership of property, whether real, persoi or mixed; H. All rights, claims, demands, liabilities and obligations arising under provisions of the Pennsylvania Divorce Code, as the same may be amended from time to tir and under the provisions of any similar statute enacted by any other country, state, territory political subdivision; I. AI! rights, claims, demands, liabilities and obligations each party now has, may hereafter have, against or with respect to the other. (16) GOVERNING LAW: This Agreement shall be construed under the law of 1 Commonwealth of Pennsylvania. If any provision of this Agreement is determined to be invalid unenforceable, all other provisions shall continue in full force and effect. (17) INCORPORATION INTO DECREE: In the event that either of the parties st recover a final judgment or decree of absolute divorce against the other in a court of comK jurisdiction, the provisions of this Agreement may be incorporated by reference or in subs but shall not be merged into such judgment or decree and this Agreement shall survive any final judgment or decree of absolute divorce and shall be entirely independent thereof. (18) BREACH: In the event that either party breaches any provision of this Ag he or she shall be responsible for any and all costs incurred to enforce the Agreement, includi g, but not limited to, court cost and counsel fees of the other party. In the event of breach, the of er parry shall have the right, at his or her election; to sue for damages for such breach or to se k such other and additional remedies as may be available to him or her. (19) ENTIRE UNDERSTANDING: This Agreement constitutes the entire understand between the parties and there are no covenants, conditions, representations, or agreements, or written, of any nature whatsoever, other than those herein contained. (20) AGREEMENT BINDING ON PARTIES AND HEIRS: This Agreement shall bi the parties hereto, their respective heirs, executors and assigns. IN WITNESS WHEREOF, the parties hereto intending to be legally bound have set their hands and seals the day and year first written above. WITNESS: ~. Wilbur R. Gordon r. a e L. on 8 :, ~, vUMEEr~LHhi~ G:;~)ldTY PEh'PISYLV~Nl~, SMIGEL, ANDERSON 8 SACKS, LLP Theresa Barrett Male, Esquire Supreme (:ourt # 46439 4431 North Front Street, 3~d Floor Harrisburg, PA 17110-1778 (717)234-2401 tmaleC?sasl(p_a>m Attorneys for Plaintiff WILBUR R. GORDON, JR. IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA ~`. N0. 2004-4810 SHANNE L. GORDON-LIBERATOR f/ka/ GORDON Defendant CIVIL ACTION -DIVORCE PLAINTIFF'S ANSWER WITH COUNTERCLAIM TO DEFENDANT'S AMENDED PETITION TO ENFORCE MARITAL SETTLEMENT AGREEMENT 1. Plaintiff ("Respondent") admits that Defendant is the Petitioner; that the divorce "Degree" [sic] was signed by the "Hon. J. Westley [sic] Oler, Jr. "; and that the divorce was finalized on December 28, 2007 under Section 3301 (d) of the Divorce Code. 2. Respondent admits that the parties signed a Marital Settlement Agreement ("MSA") on September 11, 2007. Respondent also admits that the MSA provided for an award to Petitioner from Respondent's "disposable retired military pay". By way of additional answer, the MSA speaks for itself. Respondent also incorporates by reference the averments in his counterclaim. :3. Admitted. ~i. Admitted. `i. Admitted. fi. Denied. Respondent denies that he "has not cooperated with Petitioner and/or her attorney in providing information for active participation in a Qualified Domestic Relations Order being transmitted to Defense Finance and Accounting Services resulting in unduly [sic] delay of payment to Petitioner." Respondent therefore demands strict proof of this allegation at trial on the merits. Respondent also denies that "a Qualified Domestic Relations Order" will implement the payment to Petitioner. On the contrary, orders dividing military retired pay are not "Qualified" because they are not subject to ERISA. 7'. This paragraph states a prayer for relief to which no responsive pleading is required. By way of additional answer, Respondent incorporates by reference the averments in his counterclaim. 8. This paragraph states a prayer for relief to which no responsive pleading is required. By way of additional answer, Respondent incorporates by reference the averments in his counterclaim. Wherefore, Plaintiff-Respondent requests that the Court deny Defendant's Petition to Enforce Marital Settlement Agreement. COUNTERCLAIM 9. Plaintiff incorporates by reference the averments set forth in paragraphs 1 through 8. 1i). In relevant part, the MSA provides: By Domestic Relations Order prepared by Wife's counsel, Husband will transfer to Wife 31)% of his disposable retired military pay. Counsel will prepare the required Domestic 2 Relations Order within thirty (30) days of the date of this Agreement and will transmit the Order to DFAS immediately so that a direct payment to Wife wilt not be unduly delayed. MSA at ~ 6 (emphasis added). '11. The responsibility, therefore, for preparing and submitting the domestic relations order was, and always has been, on Wife and her counsel. 12. Since the parties signed the M5A on September 11, 2007, Wife's counsel has not prepared the domestic relations order.' 13. Since the parties signed the MSA on September 11, 2007, Wife's counsel has not transmitted the domestic relations order to DFAS. 14. On October 15, 2012;, following a custody conference, Plaintiff's counsel told Defendant's counsel, inter alias a. He had not fulfilled his responsibility to prepare the domestic relations order. b. Plaintiff was willing to cooperate with the process, but that the responsibility ultimately was Defendant's. c. If Plaintiff had to file an answer to the enforcement petition, he would seek counsel fees. 15. By email dated October 25, 2012, Defendant's counsel rejected Plaintiff's proposal to resolve this matter, but extended the filing deadline for answer to November 5, 2012. 16. By failing to prepare and transmit the domestic relations order by October 11, 2007, Defendant has breached the MSA. See the answer to paragraph 6, supra. 3 17. In relevant part, the MSA provides: In the event that either party breaches any provision of this Agreement, he or she shall be responsible for any and all costs incurred to enforce the Agreement, including, but not limited to, court cost[s] and counsel fees of the other party. In the event of breach, the other party shall have the right, at his or her election[,] to sue for damages for such breach or to seek such additional remedies as may be available to him or her. MSA at ¶ 18. 18. As a direct and proximate result of Defendant's breach of the MSA, Plaintiff thus far has -incurred counsel fees in the amount of $1,500.00. 'vVherefore, Plaintiff requests the Court to award him counsel fees, costs and expenses, the total amount of which shall be determined after hearing. Date: ~~~~~~~~ ~'~- SMIGEL, ANDERSON tt SACKS, LLP } ~/ s. ,,' ; Theresa Barrett Male Esquire Supreme Court #: 46439 4431 North Front Street, 3~d Floor Harrisburg, PA 17110-1778 {717) 234-2401 Attorneys for Plaintiff 4 VERIFICATION i verify that the statements made in the foregoing document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unsworn falsification to authorities. Wilbur R. Gor n, Jr. ,/ Date: //` e~~',~~C,_.: PROOF OF SERVICE I hereby certify that I am this day serving a copy of the foregoing document upon the persons and in the manner indicated below which service satisfies the requirements of Pa. R.C.P. 440: Service by hand delivery addressed as follows: Karl E. Rominger, Esquire Rominger Et Associates 155 South Hanover Street Carlisle, PA 17013 Attorneys for Defendant SMIGE/L, ANDERSON £t SACKS, LLP !k ' ,i ~~. -_ Theresa Barrett Male Esquire Supreme Court # 46439 4431 North Front Street, 3rd Floor Harrisburg, PA 17110-1778 (717) 234-2401 Attorneys for Plaintiff Date: November 5, 2012 WILBUR R. GORDON, JR., Respondent/Plaintiff v. IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT IN DIVORCE SHANNE L. GORDON, Petitioner/Defendant ORDER OF COURT 2004-4810 CIVIL ACTION AND NOW, this 13t" day of November 2012, upon consideration of Petitioner/Defendant's Amended Petition to enforce the Martial Settlement Agreement and Plaintiffs Answer with Counterclaim, Plaintiff is given until the close of business on 5 December 2012 to respond, if necessary, to the Counterclaim. Thereafter, aPre- Hearing Conference, with counsel only, is scheduled for 19 December 2012 at 10:00 a.m. in the jury deliberation room of Courtroom No. 6. This is to be followed by a Hearing on the merits on 7 January 2013 at 11:00 a.m. in Courtroom No. 6. of the Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, Thomas A. Placey C.P.J. Distribution List: ~..~ ~, ~~~-~ :-; /Karl E. Rominger, Esq. ~ ~~ © ~ --3 ~-t-? 155 South Hanover Street ~~ ,,°~ ~~ Carlisle, PA 17013 L.~r" ~ ~~,. to Esq. Theresa B. Male ~~ ~ ~ ~ , _,, ,~, _~ "~ , 4431 North Front Street, 3~d Floor ~"~ ~ `~'-~_' c~ ~ ~ `' Harrisburg, PA 17110 ~ ~ cx~ , .. . r Wilbur R. Gordon, Jr., Plaintiff/Respondent v. Shanne L. Gordon, Defendant/ Petitioner ~^. .~ ~` i IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : NO: 2004 -S~0 ~~~ a`~ CIVIL ACTION -LAW IN CUSTODY ORDER OF COURT AND NOW, the ~~ay of ZO12, upon consideration of the Defendant's Motion to Continue it ORDERED that the Motion to Continue is GRANTED. Therefore, the December 19, 2012 Pre-Hearing Conference is re-scheduled. The Pre-Conference for counsel only will be held on the day of ~ a, , 201 at l~a.m./ in the--, , p ~~ of the Cumberland County Courthouse, Carlisle, Pennsylvania. ~t l.,ptll.~ KpOM 1Vd~ b• _~ ~~ THE COU T as A. Placey J, Com on Picas Judge I}istribution: Karl E .Rominger, Esquire Theresa Barrett Male, Esquire ~ ~ _.~ I ~ £ S' /YL ~i l ~ a ~ ~ 2 -f =~ '~=' , c rL`., r n z~ ~ ~ 7 ~ C "p ~.~ I ~ ~ ~ ~'~ _ ~' C C....~ ~! ~ r; Ji .~ _:, t WILBUR R. GORDON, JR., Plaintiff/Respondent 000",Nk& I V. IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT 2004-04810 CIVIL TERM SHANNE L. GORDON, IN DIVORCE Defendant/Petitioner IN RE: PETITION FOR DIVISION OF MILITARY RETIREMENT PLAN ORDER OF COURT AND NOW, this 15th day of March 2013, upon consideration of the Petition for Division of Military Retirement Plan, a RULE is issued upon Plaintiff to show cause why 3 the relief requested should not be granted. DEFENDANT shall effectuate service of this Order of Court upon Plaintiff. A motion to make rule absolute will not be entertained until proof of service is filed. RULE RETURNABLE twenty (20) days from the date of service by Defendant. BY THE COURT, Thom A. Placey G.P.J. Distribution: c cn- rl /'Karl E. Rominger, Esq. . 155 South Hanover Street Carlisle, PA 17013 -Va -t n cn P"Theresa Barrett Male, Esq. �a 4431 North Front Street, 3rd Floor Harrisburg, PA 17110-1778 j� c ry T. Wilbur R. Gordon, Jr., : IN THE COURT OF COMMON PLEAS Plaintiff/Respondent : CUMBERLAND COUNTY, PENNSYLVANIA V. NO: 2004 - 4810 Shanne L. Gordon, CIVIL ACTION—LAW Defendant/Petitioner : IN DIVORCE MILITARY RETIRED PAY DIVISION ORDER PRAECIPE TO FILE PROOF OF SERVICE OF MARCH 15,2013 COURT ORDER UPON PLAINTIFF'S COUNSEL To the Prothonotary: I. Whereas Defendant filed Petition for Division of Military Retirement Plan on Mardh 15, 2013. 2. Whereas, the Honorable Judge Thomas A. Placey entered an Order of the Court on March 15, 2013 issuing a Rule upon Plaintiff, and ordering that Defendant"effectuate service" of the Order upon Plaintiff. A copy is attached. 3. Whereas, Defendant effectuated service of the March 15, 2013 Order upon Plaintiffs Counsel Theresa Male, Esquire by First Class United States Postal Service on March 20, 2013. Smigel Anderson, & Sacks, LLP River Chase Office Center 4431 North Front Street, Harrisburg, Pennsylvania, 17110 without being returned. A copy of Defendant's March 20, 2013 correspondence is attached. WHEREFORE, Defendant requests the Honorable Court accept filing of this Proof of Service pursuant to Pennsylvania Rules of Civil Procedure Respectfully submitted, Date: April 2, 2013 77�_�_�SOCIATES Karl . Rominger, Esquire 155 South Hanover Street VINVAUSNNN Carlisle, PA 17013 �-�_�Nfro ONIV 1838WK (717) 241-6070 Supreme Court ID # 81924 Attorney for Defendant Wilbur R. Gordon, Jr., : IN THE COURT OF COMMON PLEAS Plaintiff/Respondent : CUMBERLAND COUNTY, c-, , , 64 PENNSYLVANIA 4J • rrt W rr - v. : NO: 2004 —1-810 Shanne L. Gordon, : CIVIL ACTION — LAW „ 7--{- Defendant/ Petitioner : IN DIVORCE MILITARY RETIRED PAY 43 IS1N ORDER PRAECIPE TO WITHDRAW MOTION TO MAKE RULE ABSOLUTE To the Prothonotary: 1. Whereas Defendant filed Petition for Division of Military Retirement Plan on March 15. 2013. 2. Whereas, the Honorable Judge Thomas A. Placey entered an Order of the Court on March 15, 2013 issuing a Rule upon Plaintiff, and ordering that Defendant``effectuate service"" of the Order upon Plaintiff. 3. Whereas, Defendant effectuated service of the March 15, 2013 Order upon Plaintiffs Counsel Theresa Male, Esquire by First Class United States Postal Service on March 20, 2013. Smigel Anderson, & Sacks, LLP River Chase Office Center 4431 North Front Street, Harrisburg, Pennsylvania, 17110 without being returned. 4. Whereas Plaintiff has until April 10, 2013 to respond to Defendant's Petition for Division of Military Retirement Pay, and the Motion to Make Rule Absolute was prematurely and mistakenly filed. WHEREFORE, Defendant requests the Honorable Court to withdraw the Motion to Make Rule Absolute. Respectfully submitted, I MIN CIATES Date: April 4, 2013 Kail E. Rominger, Esquire 15 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Defendant Wilbur R. Gordon, Jr., : IN THE COURT OF COMMON PLEAS Plaintiff/Respondent : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO: 2004 - 4810 Shanne L. Gordon, : CIVIL ACTION— LAW Defendant/ Petitioner : IN DIVORCE MILITARY RETIRED PAY DIVISION ORDER CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, attorney for Defendant/Petitioner do hereby certify that I this day mailed a copy of the within Praecipe to Withdraw theMotion to Make Rule Absolute upon the following by depositing same in the United States mail, postage prepaid, at Carlisle, Pennsylvania, addressed as follows: Theresa Barrett Male Smigel, Anderson,& Sacks, LLP 4431 North Front Street 3r`' Floor Harrisburg, PA 17110-1778 ROMINGER & ASSOCIATES Date: April 4, 2013 Karl . Rominger, Esquire 15 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Defendant SMIGEL, ANDERSON&SACKS, LLP Theresa Barrett Male, Esquire Supreme Court#46439 4431 North Front Street, 3'd Floor Harrisburg, PA 17110-1778 (717) 234-2401 tmale@sasl!L= Attorneys for Plaintiff WILBUR R. GORDON, JR. IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2004-4810 SHANNE L. GORDON-LIBERATOR f/ka/ GORDON Defendant CIVIL ACTION - DIVORCE NOTICE TO PLEAD To: SHANNE L. GORDON-LIBERATOR, Defendant You are hereby notified to file a written response to the enclosed Counterclaim within twenty days from service hereof or judgment may be entered against you. SMIGEL, ANDERSON & SACKS, LLP Date: 0 i3 By: Theresa Ba rett Male Esquire Supreme Court #: 46439 4431 North Front Street, 3rd Floor Harrisburg, PA 17110-1778 (717) 234-2401 Attorneys for Plaintiff I:,LED-Ur==1C' -r IE PROTHr"N i' r, 1013 APR -9 PM 2: 35 CUMBERLAND COUNT'-( PENNSYLVANIA SMIGEL,ANDERSON St SACKS, LLP Theresa Barrett Male, Esquire Supreme Court#46439 4431 North Front Street, 3`d Floor Harrisburg, PA 17110-1778 (717)234-2401 tmale@saslla.com Attorneys for Plaintiff WILBUR R. GORDON, JR. IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2004-4810 SHANNE L. GORDON-LIBERATOR f/ka/ GORDON Defendant CIVIL ACTION - DIVORCE PLAINTIFF'S ANSWER TO DEFENDANT'S PETITION "FOR DIVISION OF MILITARY RETIREMENT PAY" WITH COUNTERCLAIM 1. Admitted. 2. This is an incomplete allegation. 3. The Property Settlement and Separation Agreement dated September 11, 2007 ("Agreement") speaks for itself. By way of additional answer, the quoted portion of the Agreement is incomplete. See the full text at paragraph 11 of Plaintiffs Counterclaim. 4. Defendant's Petition does not contain a paragraph 4. 5. Denied. Plaintiff denies that judicial economy will be served by granting Defendant relief, and therefore demands proof of this assertion at trial on the merits. In fact, this latest petition is a waste of time and resources. The Agreement already provides for division of the military pay. By way of additional answer, Plaintiff incorporates the averments set forth in his Counterclaim. 6. Plaintiff admits that he is not on active military duty. 7. This paragraph states a conclusion of taw to which no responsive pleading is required. By way of additional answer, Plaintiff incorporates the averments set forth in his Counterclaim. 8. Denied. Plaintiff denies that he has "refused to setup [sic] with DFAS the direct deposit into [Defendant's] account," and demands proof of this allegation at trial on the merits. By way of additional answer, Plaintiff incorporates the averments set forth in his Counterclaim. 9. Denied. Plaintiff denies that Defendant is entitled to 30% of the "Plaintiff/Respondents United States military pay set forth herein" and demands proof of this assertion at trial on the merits. By way of additional answer, Plaintiff incorporates the averments set forth in his Counterclaim. Wherefore, Plaintiff urges the Court to deny Defendant's Petition for Division of Military Retirement Pay. COUNTERCLAIM 10. Plaintiff incorporates by reference the averments set forth in paragraphs 1 through 9. 11. In relevant part, the Agreement dated September 11, 2007 provides: By Domestic Relations Order prepared by Wife's counsel, Husband wilt transfer to Wife 30% of his disposable retired military pay. Counsel will prepare the required Domestic Relations Order within thirty (30) days of the date of this Agreement and will transmit the Order to DFAS immediately so that a direct payment to Wife will not be unduly delayed. 2 Agreement at 16 (emphasis added). 12. Defendant's current counsel ("Mr. Rominger") was her attorney when Defendant signed the Agreement. 13. Mr. Rominger did not "prepare the required Domestic Relations Order" within thirty days of September 11, 2007. 14. Since 2007, Mr. Rominger has not prepared "the required Domestic Relations Order." 15. Despite the fact that he was charged with preparing the required Domestic Relations Order ("DRO"), and failed to do so, Mr. Rominger nevertheless filed a petition in September 2012 to enforce the Agreement.' 16. As more particularly set forth in the following paragraphs, Plaintiff has incurred substantial legal fees since September 2012, all of which have been caused by Defendant's failure to prepare the "required" DRO. For example, on October 15, 2012, Plaintiff's counsel told Mr. Rominger that Plaintiff was witting to cooperate, but that the responsibility for preparing the DRO was Mr. Rominger's. Counsel also advised Mr. Rominger that, if Plaintiff had to file an answer to the enforcement petition, Plaintiff would seek counsel fees. 17. To avoid precisely what has occurred here, i.e., substantial expense to Plaintiff and an unwarranted drain on the court system over a purely administrative matter, Plaintiff's counsel on October 23, 2012 offered to have the DRO prepared and processed at Plaintiff's expense, with Defendant crediting the anticipated expenses of $1,200.00 against Plaintiff's child support arrears.2 1 Mr. Rominger filed the petition on September 4, 2012 to the custody action rather than to the divorce action. On October 4, 2012, he filed an "amended" enforcement petition to the correct docket. 2 Plaintiff suggested the credit simply to avoid Defendant's having to pay Plaintiff directly. 3 18. Defendant rejected that option, as a result of which Plaintiff was required to answer Defendant's enforcement petition.3 19. On November 30, 2012, Mr. Rominger's paralegal advised that he had spoken "with Domestic Relations and was informed that [he] would need the amount of the military pay in order to prepare the DRO because Domestic Relations does not deal with percentages in the Orders." 20. Promptly after returning to her office after a two-week absence in December, Plaintiff's counsel sent a Retiree Account Statement to Mr. Rominger and urged him to again advise his paralegal that Domestic Relations has nothing to do with this issue.4 21. On February 11, 2013, Mr. Rominger advised: My Paralegal Case Manager, Chris ZweifeQJ has investigated his [sic] issue with the D.F.A.S. and has come to the conclusion that a Court Order is necessary to have Mr. Gordon initiate the 30% gross pay direct deposit into Ms. Liberator's financial institution. Since this issue is settled, via the above-mentioned settlement agreement, enclosed is a proposed court order and a letter I am going to send to Judge Ptacey. 22. No investigation was necessary because, inter alia, the Agreement clearly provides for the preparation of an order dividing the benefit. 23. Nevertheless, the proposed order stated in its entirety: And Now, the _ day of , 2012 in accordance with the September 11, 2007 Property Settlement and Separation Agreement it is ORDERED and DECREED that Plaintiff shall within 10 days of the date of this Order have 30% of the gross pay from his US Military Retirement Pay directly deposited into the Defendant's account with a financial institution of her choice for the remainder of his Military Retirement Pay disbursement. 3 Plaintiff's counterclaim for counsel fees is pending. 4 Although defense counsel does not need the amount of Plaintiff's current military pay in order to prepare the DRO, Plaintiff nevertheless provided this in the naive hope of having the issue finalized before the end of 2012. 4 24. On February 20, 2013, Plaintiff's counsel advised Mr. Rominger that: yes, an order is necessary, and no, his proposed order is entirety insufficient. 25. Mr. Rominger then requested that Plaintiff prepare the order, notwithstanding the fact that the Agreement places the expense for this on Defendant and her counsel. 26. At the pre-hearing conference with this Honorable Court, Mr. Rominger showed Plaintiff's counsel a proposed order, which Plaintiff's counsel advised the Court and Mr. Rominger would not pass muster with DFAS. 27. At no time prior to the pre-hearing conference did Mr. Rominger provide Plaintiff's counsel with a DRO. 28. At no time since the pre-hearing conference has Mr. Rominger submitted to Plaintiff's counsel a DRO. 29. By failing to comply with paragraph 6 regarding preparation and processing of the DRO, Defendant breached the Agreement. 30. As a direct and proximate result of Defendant's breach, Plaintiff incurred counsel fees of $1,500.00 as of the date he filed his answer with counterclaim to Defendant's amended enforcement petition. 31. Since then, Plaintiff has incurred additional legal fees in excess of $2,500.00, all of which are a result of Defendant's failure to do what is required under the Agreement. 32. Plaintiff is entitled to recover his legal fees pursuant to the Agreement, which provides in relevant part: In the event that either party breaches any provision of this Agreement, he or she shall be responsible for any and all costs incurred to enforce the Agreement, including, but not limited to, court cost[s] and counsel fees of the other party. In the event of breach, the other party shall have the right, at his or her election(,] to sue for damages for such breach or to seek such additional remedies as may be available to him or her. 5 Agreement at 118. 33. Plaintiff also is entitled to recover his legal fees under the Judicial Code, which provides in relevant part: "The following participants shalt be entitled to a reasonable counsel fee as part of the taxable costs of the matter: (7) Any participant who is awarded counsel fees as a sanction against another participant for dilatory, obdurate or vexatious conduct during the pendency of a matter. (9) Any participant who is awarded counsel fees because the conduct of another party in commencing the matter or otherwise was arbitrary, vexatious or in bad faith." 42 Pa. C.S. S 2503. 34. The record demonstrates a lack of diligence that has delayed the proceedings unnecessarily and caused additional legal work. 35. The record demonstrates a random and unreasonable basis for the Defendant's conduct. 36. The record demonstrates that the initial enforcement petition, and this most recent petition, was filed without sufficient basis in law or fact. Wherefore, Plaintiff requests the Court to enter an order: a. Directing Defendant to deposit $1,000.00 with Jonathan D. Cramer, FSA, of Conrad Siegel Actuaries, to pay for the preparation of the Domestic Relations Order contemplated by the Property Settlement and Separation Agreement dated September 11, 2007. b. Directing Defendant to pay any additional fees which Mr. Cramer may incur in the preparation of the Domestic Relations Order. 6 c. Directing Defendant to pay to Plaintiff $4,000.00 in counsel fees which he has incurred to date. d. Awarding Plaintiff all additional legal fees, costs and expenses which he incurs after the filing of this Answer with Counterclaim. SMIGEL, ANDERSON & SACKS, LLP Date: 0 By: Theresa Bar ett Male Esquire Supreme Court #: 46439 4431 North Front Street, 3 I Floor Harrisburg, PA 17110-1778 (717) 234-2401 Attorneys for Plaintiff 7 VERIFICATION I verify that the statements made in the foregoing document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unworn falsification to authorities. Wilbur R. Gor , Jr. Date: G'Q PROOF OF SERVICE I hereby certify that I am this day serving a copy of the foregoing document upon the persons and in the manner indicated below which service satisfies the requirements of Pa. R.C.P. 440: Service by first-class mail addressed as follows: Karl E. Rominger, Esquire Rominger ft Associates 155 South Hanover Street Carlisle, PA 17013 Attorneys for Defendant SMIGEL ANDERSON ft SACKS, LLP Theresa Bar Kett Male Esquire Supreme Court #46439 4431 North Front Street, 3rd Floor Harrisburg, PA 17110-1778 (717) 234-2401 Attorneys for Plaintiff Date: April 9, 2013 Wilbur R. Gordon,Jr., IN THE COURT OF COMMON PLEAS Plaintiff/Respondent CUMBERLAND COUNTY, PENNSYLVANIA V. NO: 2004-4810 C-) Shanne L. Gordon, CIVIL ACTION—LAW Defendant/Petitioner IN DIVORCE ANSWER TO PLAINTIFF'S COUNTER CLAIM 11. This paragraph does not contain an allegation. Therefore,no answer is requirM. 12. ADMITTED 13. ADMITTED 14. DENIED. And by further Answer Defendant's Counsel has made several attempts to present a Proposed Order to Plaintiff s counsel. However,Plaintiff's counsel repeatedly rejected the Proposed Court Orders citing the Orders were not sufficient or acceptable to her client, and included a letter dated February 7, 2013 alleging "offsets"to the monthly payments of the military retirement pay owed to the Plaintiff. This caused additional delays and resulted in the filing of Petitions by the Defendant to have a Court Order finally bring a resolution. According to page three(3)of the DFAS Guidance on Dividing Military Retired PaY a simple Court Order obtained through a Petition would suffice the necessary DFAS requirements to have the Plaintiff s military retirement pay directly deposited from the DFAS into the Defendant's financial institution without any ongoing dependence upon the Plaintiff to actively engage the transfer of funds. The determination was confirmed upon a clear investigation performed by Defendant's Counsel's Paralegal Case Manager entailing direct contact with representatives of the Defense Finance Administration Services (D.F.A.S). Guidelines from D.F.A.S cited the Page 1 of 7 r r length of the marriage precluded DFAS from being able to initiate the direct deposit without a Court Order. Defendant received notification of the guideline requirements by letter from the D.F.A. S dated December 27,2012. A true and complete copy of the Guidance on Dividing Mllita�ry Retired Pay is attached as EXHIBIT A. 15. ADMITTED IN PART DENIED IN PART: Admitted that Defendant was"charged with preparing the "Domestic Relations Order(DRO), and that Defendant filed a Petition to Enforce the Agreement". DENIED that Defendant"failed to do so" in regard to preparing the Domestic Relations Order or an acceptable alternative Court Order complying with DFAS guidelines that would'solve the issue. 16. DENIED. By way of further answer Defendant denies that Plaintiff"has incurred substantial legal fees"due to any actions of the Defendant. In contrast,Plaintiff has caused substantial delays in the final resolution of the division of the military pay as mentioned above. Defendant should not be penalized for rigorously defending against Plaintiff s malign legal tactics to not divide the military retirement pay within the DFAS guidelines and as directed by the MSA. 17. ADMITTED IN PART DENIED IN PART: By way of further answer it is denied that Defendant's actions have unduly caused a"drain on the court system' or"substantial expense to Plaintiff'. Defendant admits that Plaintiff's counsel offered to have the DRO prepared at a $1200 expense to the Defendant. However,by way of further answer,Defendant refused to have Plaintiff charge her$1200.00 for a simple Court Order that was easily drafted by her own counsel.. 18. ADMITTED Page 2 of 7 19. This paragraph does not contain any allegation. Therefore, no answer is required. 20. This paragraph does not contain any allegation. Therefore,no answer is required. 21. This paragraph does not contain any allegation. Therefore,no answer is required. 22. This paragraph does not contain any allegation. Therefore,no answer is required. 23. This paragraph does not contain any allegation. Therefore,no answer is required. 24. ADMITTED. 25. ADMITTED: By way of further answer due to Plaintiff counsel's repeated rejection of any proposed Court Order drafted by Defendant's counsel it was proposed that Plaintiff's counsel draft a simple Court Order that would be acceptable to her and present it Defendant's counsel. As previously mentioned DFAS Guidelines only required a simple Court Order that would not place any significant expense on Plaintiff. In contrast,the continued rejection by Plaintiff's counsel of the Court Orders presented to her have placed significant added expenses to Defendant. In the interest of judicial economy,the Defendant wanted to have a Court Order agreeable to the Plaintiff,and having Plaintiff's counsel draft it seemed to be the only way to bring resolution to the matter at hand. 26. ADMITTED. By way of further answer,the Proposed Order presented to Plaintiff was a taken directly from DFAS Guidance on Dividing Military Retired Pay . Therefore, it would have "pass muster"with DFAS. The Defendant's position on this is the Proposed Order did not "pass Muster"with Plaintiff s counsel as she was seeking offsets to the monthly payments that were not included in the Proposed Order. 27. DENIED. Defendant's counsel presented Proposed Orders that were rejected by Plaintiff's attorney. Page 3 of 7 28. DENIED Defendant's counsel presented Proposed Orders that were rejected by Plaintiff's attorney. 29. DENIED. Defendant did not breach the Agreement. 30. DENIED. Defendant did not cause any incurred counsel fees for the Plaintiff. 31. DENIED. Defendant did not cause any incurred counsel fees for the Plaintiff, 32. This paragraph does not contain an allegation. No response or Answer is required. 33. This paragraph does not contain an allegation.No response or Answer is required 34. ADMITTED. By way of further answer, Defendant has diligently worked in good faith with Plaintiff to bring resolution. Defendant properly submitted the proper application to DFAS to initiate the transfer of her portion of the military retirement pay. Defendant's application was rejected by DFAS due not meeting the "10/10 Rule".1 35. DENIED. By way of further answer, Defendant has been attempting to comply with the requirements and guidelines of DFAS to bring a resolution to the matter. The record demonstrates Defendant's efforts in good faith. 36. DENIED, By way of further answer,Defendant's filings were systematically attempting to comply with the MSA while being within the guidelines and requirements of DFAS. Since DFAS only required a simple Court Order and not a QUADRO or other related DRO type Orders, there was no need for Plaintiff to acquire additional costs through hiring a third party i.e. 1 DFAS'110/10 Rule"is a"killer requirement". For the division of retired pay as property awarded to be enforceable by direct payments under the federal Uniformed Services Former Spouses Protection Act(USFSPA),the former spouse must have been married to the military retiree member for a period of 10 years or more during which the military member performed at least 16 years of service creditable toward retirement eligibility. This requirement DOES NOT apply to the Court's authority to divide military pay,but ONLY to the ability of the former spouse to enforce the award by direct payments from DFAS. (PAGE 3-4 of GUIDANCE ON DIVIDING MILELOY RETIRED PAY Garnishment Operations DFAS. Page 4 of 7 Jonathan D. Cramer, FSA of Conrad Siegal Actuaries. Defendant filed Petition(s) in a futile attempt with good faith to have Plaintiff actively engage a direct deposit of the 30%of the military retirement pay. Plaintiff must initiate the transfer of funds from his DFAS account through a direct deposit into Defendant's financial institution. Incidentally, Plaintiff could have initiated the transfer of funds on his own by simply notifying DFAS of the desire to do so. The Court Order was ONLY necessary if Plaintiff was opposing the transfer attempts of the Defendant and/or the enforcement of the Marital Settlement Agreement. Had the Plaintiff voluntarily initiated the direct deposit transfer both parties would not have acquired additional legal fees and there would be no drain on the court system. This is the only way DFAS can have monies transferred to the Defendant since the parties were not married for 10 years or more concurrent with Plaintiff s active military service known by DFAS as the "10/10 Rule". The parties not meeting the"10/10 Rule"preclude DFAS from actively initiating the monies transfer. (See page three of the attached EXHIBIT A) a. This paragraph does not contain any allegation. Therefore,no answer is required. b. This paragraph does not contain any allegation. Therefore, no answer is required. C. This paragraph does not contain any allegation. Therefore,no answer is required. d. This paragraph does not contain any allegation. Therefore,no answer is required. Page 5 of 7 WHEREFORE, Defendant request the Honorable Court deny Plaintiff's Counter Claim and issue an Order upon the Plaintiff to activate the direct deposit into Defendant's financial institution from his DFAS military retirement account equal to 30% in compliance with the Marital Settlement Agreement. Respectfully Submitted OMINGER& ASSOCIATES Date:L� ! f" K 1 E. Rominger, Esquire 5 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Defendant Page 6 of 7 Wilbur R. Gordon, Jr., : IN THE COURT OF COMMON PLEAS Plaintiff/Respondent : CUMBERLAND COUNTY, PENNSYLVANIA V. NO: 2004 - 4810 Shanne L. Gordon, CIVIL ACTION—LAW Defendant/Petitioner : IN DIVORCE MILITARY RETIRED PAY DIVISION ORDER CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, attorney for Defendant/Petitioner do hereby certify that I this day mailed a copy of the within Answer to Plaintiff's Counter Claim upon the following by depositing same in the United States mail, postage prepaid, at Carlisle, Pennsylvania, addressed as follows: Theresa Barrett Male Smigel, Anderson,& Sacks, LLP 4431 North Front Street 3rd Floor Harrisburg, PA 17110-1778 ROMINGER& ASSOCIATES Date: Kar . Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court ID #81924 Attorney for Defendant Page 7 of 7 Disclaimer-this publication is intended to provide guidance only, and is not legally binding. Legal authority may be found at Title 10, United States Code, Section 1408, and the DoD Financial Management Regulation, Volume 7B, Chapter 29, available at http://comptroller.defense.gov,fmr/07b/index.html. GUIDANCE ON DIVIDING MILITARY RETIRED PAY GARNISHMENT OPERATIONS DEFENSE FINANCE AND ACCOUNTING SERVICE(DFAS) CLEVELAND,OHIO DFAS-HGA/CL P.O. BOX 998002 CLEVELAND,OH 44199-8002 1-888-332-7411 FAX 1-877-622-5930 OR 1-216-522-6960 Website http://www.dfas.mil/garnishment/retiredmilitary.html TABLE OF CONTENTS Page I. HISTORY 2 II. DOCUMENTS NEEDED TO DIVIDE MILITARY RETIRED PAY 2 III. REQUIREMENTS FOR ENFORCEABILITY UNDER USFSPA 3 A. Servicemembers Civil Relief Act 3 B. Requirements that apply to retired pay as property awards only 3 IV. LANGUAGE DIVIDING MILITARY RETIRED PAY 4 A. Fixed dollar amount or percentage awards 4 B. Introduction to formula any hypothetical retired pay awards 6 C. Formula awards 6 D. Hypothetical retired pay awards 7 E. Examples of unacceptable former spouse award language 12 F. Correcting deficient awards 13 V. ACKNOWLEDGEMENT 13 APPENDIX A- MILITARY RETIRED PAY DIVISION ORDER 14 APPENDIX B -NOTARIZED STATEMENT CLARIFYING COURT ORDER 17 1 UNIFORMED SERVICES FORMER SPOUSES' PROTECTION ACT (DIVIDING MILITARY RETIRED PAY) 1. HISTORY. The Uniformed Services Fortner Spouses' Protection Act (USFSPA) was passed by Congress in 1982. The USFSPA gives a State court the authority to treat military retired pay as marital property and divide it between the spouses. Congress' passage of the USFSPA was prompted by the United States Supreme Court's decision in McCarty v. McCarty in 1981.1 The McCarty decision effectively precluded state courts from dividing military retired pay as an asset of the marriage. Justice Blackmun, writing for the majority, stated that allowing a state to divide retired pay would threaten "grave harm to 'clear and substantial' federal interests.„2 Accordingly, the Supremacy Clause of Article VI preempted the State's attempt to divide military retired pay. Congress, by enacting the USFSPA, clarified it's intent that State courts have the power to divide what can be the largest asset of a marriage. With the passage of the USFSPA, Congress took the opportunity to set forth various requirements to govern the division of military retired pay. Congress sought to make a fair systen,i for military members, considering that their unavailability and deployment status often exposes them to difficulties with civil litigation. Therefore, if a member is divorced while on active duty, the requirements of the Servicemembers Civil Relief Act (SCRA)3 must be met before an award dividing military retired pay can be enforced under the USFSPA.4 Additionally, the USFSPA contains its own jurisdictional requirement for the division of retired pay as property.5 It limits the amount of the member's retired pay which can be paid to a former spouse to 50%of the member's disposable retired pay(gross retired pay less authorized deductions).6 It requires that the parties must have been married 10 years or more while the member performed at least 10 years of service creditable towards retirement eligibility before a division of retired 7 pay is enforceable under the USFSPA. It specifies how an award of military retired pay must be expressed.8 It also provides a former spouse with a means of enforcing an alimony and/or child support award.9 11. DOCUMENTS NEEDED TO APPLY FOR DIVISION OF MILITARY RETIRED PAY. The USFSPA defines a "court order” dividing military retired pay enforceable under the Act as a"final decree of divorce, dissolution, annulment, or legal separation issued by a court, or McCarty v.McCarty,453 U.S.210(1981) Id.at 232. 3 See Sorvicemembers Civil Relief Act,50 U.S.C.App.§501 et seq. 4 10 U.S.C. §1408(b)(1)(D), ' 10 U.S.C.§ 1408(c)(4). 6 10 U.S.C.§ 1408(e)(1). 7 10 U.S.C.§ 1408(d)(2). ' 10 U.S.C.§ 1408(a)(2)(C). 9 See 10 U.S.C. § 1408(a)(2)(B); 10 U.S.C. § 1408(d)(1). 2 r a court ordered, ratified, or approved property settlement incident to such a decree."10 This also includes an order modifying a previously issued"court order." Since military retired pay is a Federal entitlement, and not a qualified pension plan, there is no requirement that a Qualified Domestic Relations Order (QDRO) be used. As long as the award is set forth in the divorce decree or other pertinent court order in an acceptable manner, that is sufficient. It is also not necessary to judicially join the "member's plan" as a part of the divorce proceeding. There is no Federal statutory authority for this. The award may also be set forth in a court ratified or approved separation agreement, or other court order issued incident to the divorce. In order to submit an application for payments under the USFSPA, a former spouse needs to submit a copy of the applicable court order certified by the clerk of court, along with a completed application form (DD Form 2293).11 Instructions, including designated agent names and addresses, are on the back of the DD Form 2293. The Defense Finance and Accounting Service (DFAS) is the designated agent for all uniformed military services. The Form and instructions can be downloaded from our DFAS website at www.dfas.mil/garnishment/ retiredmilitary.html. III. . USFSPA REQUIREMENTS WHEN THE FORMER SPOUSE HAS APPLIED FOR DIRECT PAYMENTS THROUGH DFAS A. Servicemembers Civil Relief Act. The provision of the SCRA that has primary application to the USFSPA and the division of military retired pay is the section concerning default judgments against active duty service members. This section requires that if an active duty defendant fails to make an appearance in a legal proceeding, the plaintiff must file an affidavit with the court informing the court of the member's military status. The court shall appoint an attorney to represent the interests of the absent defendant.12 A member has 90 days after separation from active duty service to apply to a court rendering a judgment to re-open a case on SCRA grounds.13 Thus, this provision of the SCRA does not apply to a member with an active duty divorce where the member has been retired for more than 90 days. B. Requirements that Apply to Retired Pay as Property Awards Only(not child support or alimony) (1)The 10/10 requirement. ,0 10 U.S.C.§ 1408(a)(2). ' Department of Defense Financial Management Regulation(DoDFMR),volume 7B,subparagraph 290401.A. Available over the Internet at www.defenselink.mil/comptroller/fmr/07b/index.htmi. 12 50 U.S.C.App.§521(b). i3 50 U.S.C.App. §521(g)(2). 3 t This is a "killer" requirement. For a division of retired pay as property award to be enforceable by direct payments under the USFSPA,the former spouse must have been married to the member for a period of 10 years or more during which the member performed at least 10 years of service creditable towards retirement eligibility.14 This requirement does not apply to the Court's authority to divide military retired pay, but only to the ability of the former spouse to enforce the award by direct payments from DFAS. This is a statutory requirement for direct payments, and not a personal right of the member that can be waived. Although this requirement was probably included in the USFSPA to protect members, we have had more complaints about it from members than from former spouses. Assuming that a member intends to meet his or her legal obligations, the member would rather have DFAS pay the former spouse directly as it would lessen contact with the former spouse. Also, if DFAS pays the former spouse directly,the former spouse's USFSPA payments would be reported on her or his own Form 1099-R, instead of all taxable retired pay being reported on the member's Form 1099-R. If we cannot determine from the court order whether the 10/10 requirement has been met, we will ask the former spouse to provide a copy of the parties' marriage certificate. A recitation in the court order such as, "The parties were married for 10 years or more while the member performed 10 years or more of military service creditable for retirement purposes" will satisfy the 10/10 requirement, unless the marriage certificate shows otherwise. (2) USFSPA Jurisdiction. The USFSPA's jurisdictional requirement is found in 10 U.S.C. § 1408(c)(4). This is another"killer" requirement. If it is not met, the former spouse's application for direct payment of retired pay as property under the USFSPA will be rejected. For a court to have the authority to divide military retired pay, the USFSPA requires that the court have "(c)(4)"jurisdiction over the military member in one of three ways. One way is for the member to consent to the jurisdiction of the court. The member indicates his or her consent to the court's jurisdiction by taking some affirmative action with regard to the legal proceeding, such as filing any pleading in the case.15 Simply receiving notice of filing of the divorce complaint or petition is not sufficient. Consent is the most common way for a court to have(c)(4)jurisdiction over a member. The other ways for the court to have(c)(4)jurisdiction is for the member to be a resident of the State at the time of divorce other than because of his or her military assignment, or for the court to find that the member was domiciled in the particular State at the time of the divorce. Now, the key with regard to domicile is that the court makes this determination, and it should be noted in the divorce decree. IV. LANGUAGE DIVIDING MILITARY RETIRED PAY. 14 10 U.S.C.§ 1408(d)(2). 15 See Bi'aka v.United States,74 Fed.Cl.692,698(2006). See also DoDFMR,vol.7B,subparagraph 290604.A.3. 4 A. Fixed dollar amount or percentage awards. The amount of a former spouse's award is entirely a matter of state law. However, in order for the award to be enforceable under the USFSPA, it must be expressed in a manner consistent with the USFSPA, and we must be able to determine the amount of the award. The USFSPA states that for a retired pay as property award to be enforceable, it must be expressed either as a fixed dollar amount or as a percentage of disposable retired pay.16 Additionally, pursuant to the Department of Defense Financial Management Regulation (DoDFMR), Volume 713, Chapter 29, paragraphs 290607 and 290608, , if the parties are divorced prior to the member's receiving retired pay, the court order may(but is not required to) state a retired pay as property award as an acceptable formula or as a percentage of a hypothetical retired pay amount. We consider formula and hypothetical awards to be types of percentage awards. For a fixed dollar amount award, a monthly amount needs to be provided in the court order. If a fixed dollar amount award is used, the former spouse would not be entitled to any of the member's retired pay cost of living adjustments (COLAs).17 Because of the significant effect of COLAs over time, it is infrequent that an award is stated as a fixed dollar amount. The more common method of expressing the former spouse's award is as a percentage of the member's disposable retired pay. This has the benefit to the former spouse of increasing the amount of the former spouse's award over time due to periodic retired pay COLAs. All percentage awards are figured using a member's disposable retired pay, which is a member's gross retired pay less authorized deductions.18 The authorized deductions vary based on the date of the parties' divorce.19 The principal deductions now include retired pay waived to receive VA disability compensation, disability retired pay, and Survivor Benefit Plan (SBP) premiums where the former spouse is elected as the former spouse beneficiary. Since the United States Supreme Court has ruled that Congress authorized the division of only disposable retired pay, not gross retired pay,20 the regulation provides that all percentage awards are to be construed as a percentage of disposable retired pay.21 If the amount of the former spouse's award is expressed as a dollar amount or percentage of disposable retired pay less the amount of some other obligation (e.g., the amount of the Survivor Benefit Plan premium or the former spouse's child support obligation), the entire award is unenforceable. This type of award language does not meet the statutory requirement of a fixed dollar amount or percentage. Also, tying a former spouse's award to some other figure that is subject to change, such as the SBP premium, renders the former spouse's award indeterminate. Indeterminate awards cannot be established in the retired pay system. 16 10 U.S.C.§1408(a)(2)(C). "DoDFMR,Vol.7B,Subparagraph 290601.0.provides for automatic COLAs only for awards expressed as a percentage of disposable retired pay. 's 10 U.S.C.§ 1408(a)(4)(amended 1986, 1990). 19 DoDFMR,Vol.7B,Paragraph 290701 provides a list of the authorized deductions by divorce date. 20 Mansell v.Mansell,490 U.S.581. DoDFMR,Vol. 7B,Paragraph 2906016.D. 5 Similarly, set-offs against the former spouse's award are not permitted.22 Although the award language may be acceptable, if another provision of the court order requires that another amount be set-off from the former spouse's share, such as an SBP premium or other financial obligation that the former spouse owes the member,the set-off is unenforceable. This is because there is no provision in the USFSPA that authorizes enforcement of a set-off against the former spouse's retired pay as property award. State courts have authority to divide military retired pay only as set forth by the USFSPA.23 Thus, state court provisions not in accordance with the USFSPA are unenforceable. There is no magic language required to express a percentage or fixed dollar award. All the court order needs to say is the following: Example 1: "The former spouse is awarded percent for dollars per month] of the member's disposable military retired pay." (Note: blanks in the examples represent numbers that must be provided to us in the court order.) B. Introduction to formula and hypothetical retired pay awards. Most of our problems with award language have arisen in cases where the parties were divorced while the member was still performing military service. In these cases, the former spouse's award was indeterminate at time of divorce since the member has not yet retired. Since the parties did not know how much longer the member would remain in military service after the divorce, a straight percentage award may not have been suitable. Also, many States take the approach that the former spouse should not benefit from any of the member's post-divorce promotions or pay increases based on length of service after the divorce. These awards were often drafted in such a way that we could not determine the amount of the award. This caused the parties to have to go back to court and obtain a clarifying order. A proposed regulation was issued in 1995 that allowed for(but did not require)the use of formula and hypothetical retired pay awards to divide military retired pay when the parties were divorced prior to the member's becoming eligible to receive retired pay.24 Although this proposed regulation was never finalized, it provided the basis for our review of these types of award's and the basic procedures for computing them. We have refined the procedures since then, and they are now incorporated into Chapter 29 of the DoDFMR, Volume 7B.25 We discuss these procedures below. In addition, we provide examples of acceptable award language below. These examples are also set forth in our sample Military Retired Pay Division Order, which is included as Appendix A to this Instruction, and also included as Appendix A to Chapter 29 of the DoDFMR.26 22 DoDFMR,Vol.7B,Paragraphs 290610,290903. 23 Mansell,490 U.S.at 581,illustrates the general principal that state courts may deal with military retired pay only in accordance with the provisions of the USFSPA. 24 Former Spouse Payments From Retired Pay,60 Fed.Reg. 17507(1995)(to be codified at 32 C.F.R.pt.63)(proposed Apr 5, 1995). 2'DoDFMR,Volume 7B,Paragraphs 290607(formula awards)and 290608(hypothetical retired pay awards). 26 DoDFMR,Volume 7B,Appendix A(Figure 1). 6 C. Formula awards. A formula award is usually expressed in terms of a marital fraction, where the numerator covers the period of the parties' marriage while the member was performing creditable military service, and the denominator covers the member's total period of creditable military service. The former spouse's award is usually calculated by multiplying the marital fraction by Y2 or 50%. However, the parties can provide a different percentage. Since a formula award works out to a percentage of disposable retired pay, we consider it to be a type of percentage award, and as such it would automatically include a proportionate share of the member's COLAs.27 If the court order provides a variable that is incorrect, the parties need to get the variable corrected by the court. We cannot change a number specifically stated in the order. If a court order provides a formula award and also provides all the variables necessary to compute the formula,we will complete the calculation as is using those variables provided in the order. If the order provides a percentage award, and also states the formula the court used to determine the percentage, we will set up the percentage as provided in the order regardless of how the court determined it. The following comments pertain to cases where the court order uses a formula award that requires us to provide a variable before completing the computation. 1. For members qualifying for an active duty retirement, the numerator of a marital fraction is usually the total period of time from marriage to divorce or separation while the member was performing creditable military service. If the court order requires us to compute a formula award dividing an active duty retirement, then the court order must provide us with the numerator of the fraction, expressed in terms of whole months.28 If the numerator is expressed in terms of years or days, we will convert it to months by rounding down to the nearest whole month, and dropping any odd days or partial months. Failing to provide the number to be used in the numerator will cause the court order to be rejected. We will supply the denominator in terms of whole months of creditable service for multiplier purposes, and then work out the formula to determine the former spouse's award as a percentage of disposable retired pay. We will carry out all computations to six decimal places. Example 2. The following language is an example of an acceptable way to express an active duty formula award: "The former spouse is awarded a percentage of the member's disposable military retired pay, to be computed by multiplying % times a fraction, the numerator of which is months of marriage during the member's creditable military service, divided by the member's total number of months of creditable military service." 27 DoDI~.MR,Volume 713,Subparagraph 290601.0. 28 DoDI~MR,Volume 713,Subparagraph 290607.13. 7 For example, assume that the parties' marriage lasted exactly 12 years (or 144 months) during the member's military service. If the parties have agreed to use 50% as the percentage element of the formula, assume that the active duty formula award is "50% times a fraction, the numerator of which is 144 months divided by the member's total number of months of creditable military service." If the member serves for a total of 25 years (or 300 months) and then retires, then the former spouse would receive '12 x (144/300)=24.0000%of the members disposable retired pay. 2. If the court order provides a formula award to divide a reserve retirement, then the court order must provide us with the numerator of the marital fraction, expressed in terms of reserve retirement points earned during the marriage.29 For such orders, failing to provide the numerator expressed as reserve points earned during the marriage will cause the court order to be rejected. We will supply the member's total reserve retirement points for the denominator, and carry out the computation to six decimal places. Example 3. The following language is an example of an acceptable way to express a reserve retirement formula award. "The former spouse is awarded a percentage of the member's disposable military retired pay, to be computed by multiplying % times a fraction, the numerator of which is reserve retirement points earned during the period of the marriage, divided by the member's total number of reserve retirement points earned." D.Hypothetical retired pay awards. (1) Introduction. A hypothetical retired pay award (or hypothetical award) is an award expressed as a percentage of a hypothetical retired pay amount that is different from the member's actual retired pay. If the court order uses a hypothetical award, it is usually figured as if the member had retired on the date of separation or divorce. Some jurisdictions use hypothetical awards to divide military retired pay. A hypothetical award does not give the former spouse the benefit of any of the member's pay increases due to promotions or increased service time after the divorce. Since a hypothetical award also works out to a percentage of disposable retired pay, hypothetical.awards are a type of percentage award, and as such would automatically include a proportionate share of the member's COLAs. ° The basic method for computing military retired pay is to multiply the member's retired nay base times the retired nay multiplier.3i The standard retired nay mu&k1ier is the product of two and one-half percent (i.e., .025) times the member's years of creditable service.32 For example, the retired pay multiplier for an active duty member who serves 20 years will be 50% (025 x 20=50010); the retired pay multiplier for an active duty member who serves 25 years will 24 Id. 30 DoDF"MR,Volume 7B,Subparagraph 290601.C. 31 DoDFW Vol.7B,Paragraph 030102, 32 Id.at Subparagraph 030102.D. 8 be 62.5% (.025 x 25 = 62.5%) The years of creditable service for a reservist are computed by dividing the reserve retirement points on which the award is to be based by 360.33 Additionally, for members who entered military service on or after August 1, 1986, who are under the age of 62, and who elect to participate in the CSB/REDUX retirements sue,their retired pay multiplier is reduced one percentage point for each full year of service less than 30, and '1/12 of one percent for each full month. Their retired pay is recomputed using the standard multiplier when the member attains age 62. For members entering military service before September 8, 1980, the retired nay base is the member's final basic pay. This figure would be determined by the pay table in effect at the time'of retirement, and would be based on the member's rank and years of service for pay purposes.35 For members entering military service after September 7, 1980, the retired pay base is the average of the member's highest 36 months of basic pay.36 This is known as the high-3 amount. This will usually be the last 36 months prior to retirement. The retired pay computation is rounded down to the next lower multiple of$1.37 For example, $1,501.75 would be rounded down to $1,501. A hypothetical retired pay amount is computed the same way as a member's actual military retired pay, but based on variables that apply to the member's hypothetical retirement. The necessary variables are shown as blanks in the following examples of acceptable award language. The principal problem we find with hypothetical awards is that one or more of the necessary variables for the hypothetical retired pay computation are often left out of the court order. Therefore, to be able to compute a hypothetical award, these variables must be provided to us in the applicable court order. Failure to do so will cause the court order to be rejected because we cannot compute the award. For members entering military service before September 8, 1980, the hypothetical retired pay base is generally the member's basic pay at the hypothetical retirement date. Parties can obtain the basic pay amounts by looking at the military basic pay tables. Basic pay tables are available at the DFAS Web site at www.dfas.mil/militarypay/militarypaytables.htrnl. Attorneys should be able to obtain the basic pay figure either from the member or from the applicable pay table. For members entering military service after September 7, 1980, the hypothetical retired pay base would normally be the average of the member's highest 36 months of basic pay prior to the hypothetical retirement date. This information is specific to each member. The pay information can be obtained from either the member during discovery or from his pay center by subpoena. The Garnishment Operations Directorate does not have access to this pay information. It must be included in the court order dividing military retired pay. 33 Id.at Subparagraph 010301.F. Id. 3s Id.at Subparagraphs 030102.A through C. 36 Id.at Subparagraph 030108.C. 37 Id.at Subparagraph 030109.A. 9 a , For members who elect to retire under the CSB/REDUX retirement system, we will compute the member's hypothetical retired pay amount using the standard retired pay multiplier, and not the reduced CSB/REDUX multiplier, unless the court order directs us to do otherwise. Thus, the former spouse's award will normally not be reduced as a result of the member's electing to receive a Career Status Bonus(CSB) and a reduced retired pay amount. The hypothetical retired pay amount is a fictional computation, in that the member often does not have the required 20 years of creditable service necessary to be eligible to receive retired pay on the date his or her retired pay is divided. Hence, we are computing a retired pay amount as if the member would have been eligible to retire on that date. . Also, a member who retires with less than 20 years of creditable service may have a reduction factor applied to his or her retired pay computation.38 (This reduction factor is completely different than CSB/REDUX factor listed above.) But the only time we would apply a reduction factor to the hypothetical retired pay calculation is if a reduction factor was actually used to compute the member's military retired pay. In that case, we would apply the same reduction factor to both computations. (2)Example of a hypothetical retired pay calculation. We will convert all awards of a percentage of a hypothetical retired pay amount into a percentage of the member's actual disposable retired pay according to the following method. (a) First, we will calculate the hypothetical retired pay amount. Assume that the court order awarded the former spouse 25% of the retired pay of an E-6 with a retired tray base of $2,040 and with 18 years of service retiring on June 1, 1999. The member actually retires on June 1, 2002. The member's hypothetical retired nay multiplier would be computed as: .025 x 18 years of service = .45 (or 45%). His hypothetical retired pay would be .45 x $2,040 (retired pay base) =$918.00. (b) Next, unless the court order directs otherwise, we will apply retired pay cast-of- living-allowances (COLAs) to the hypothetical retired pay amount up to the member's actual retirement date to find a"present value" of the hypothetical retired pay as of the member's actual retirement date. The addition of the COLAs does not result in the former spouse benefiting from the member's additional service time or promotions after the hypothetical retirement date. It simply provides the former spouse with the COLA amount he or she would have received had the member actually become eligible to receive retired pay on the hypothetical retirement date.39 In our example, the member would have been eligible for the following COLAs had he retired on June 1, 199940: December 1, 1999 1.7% $918.00 x 1.017=$933.00 38 Id.at Subparagraph 030110.A. 39 See DoD Report to Congress Concerning Federal Former Spouse Protection Laws,page 72,dated September 5, 2001,available at http://prhome.defense.gov/spouserev.html. '°See DoDFMR,Vol. 7B,Chapter 8,Subchapter 0804. 10 December 1,2000 3.5% $933.00 x 1.035=$965.00 December 1, 2001 2.6% $965.00 x 1.026= $990.00. Thus, if the member had retired on the hypothetical retirement date (June 1, 1999), his hypothetical retired pay would have been worth$990.00 per month at the time he actually retired on June 1,2002. (c) We will then convert the former spouse's award to a percentage of the member's actual disposable retired pay by multiplying the percentage awarded the former spouse times a fraction. The member's hypothetical retired pay is the numerator of the fraction, and the member's actual retired pay is the denominator. In our example, assume that the member later retired on June 1, 2002, as an E-7 with a retired pay base of$3,200.40 and 23 years of creditable service. The member's actual retired pay multiplier would be .025 x 23 years= .575. His gross retired pay would be .575 x $3,200.40 = $1,840.00. The court order awarded the former spouse 25% of the retired pay of an E-6 with a retired pay base of$2,040 and with 18 years of service retiring on June 1, 1999. However. the former spouse's actual award percentage would be: 25% times $990/$1,840 = 13.4510%. We would set up 13.4510%in the retired pay system. While the percentage has been reduced from 25% to 13.4510%, the amount the former spouse would receive is the amount intended by the court. This is because the lower percentage would be multiplied times the higher dollar amount of the member's actual disposable retired pay. For example, in this case assume that the member's disposable retired pay is equal to his gross retired pay. Twenty-five percent of$990 is $247, which equals 13.4510% of$1,840. The retired pay system would apply 13.4510% to the member's actual disposable retired pay each month to determine the amount the former spouse receives. The former spouse would automatically receive a proportionate share of the member's cost of living adjustments (COLAS).41 For CSB/REDUX members, we would compute the former spouse's initial percentage using the member's reduced retired pay amount as the denominator of the fraction. We would implement this percentage in the retired pay system effective through the month the member attains age 62. We would also calculate the former spouse's percentage using the retired pay amount the member would have received had the member not elected CSB/REDUX. We would also set this lower percentage up in the retired pay system effective on the first day of the month after the member attains age 62, which is also the effective date of the re-computation of the member's retired pay to the amount the member would have received had the member not elected CSB/REDUX.42 This adjustment prevents the former spouse from receiving more than the amount intended in the court order. (3) Examples of active duty hypothetical awards. The following are examples of acceptable active duty hypothetical awards. 41 See DoDFMR,Vol.7B,Paragraph 29060I.0. 42 DoDfMR,Vol. 713,Subparagraph 030111.B. Example 4. The following language is acceptable for all active duty members, regardless of service entry date. The former spouse is awarded % of the disposable military retired pay the member would have received had the member retired with a retired pay base* of$ (dollar amount) and with years of creditable service on " *The retired pay base is a base pay figure. As noted on page 9 above, the retired pay base is the final basic pay at retirement for members entering military service before September 8, 1980, and the "high-3" amount for member's entering military service on or after September 8, 1984. Example 5. If a member entered military service before September 8, 1980, the following language is also acceptable because we can determine the member's retired pay base by simply looking at the pertinent military pay table. "The former spouse is awarded % of the disposable military retired pay the member wound have received had the member retired with the rank of and with years of creditable service on " The court order may direct us to calculate a hypothetical retired pay amount using the pay tables in effect at the time the member becomes eligible to receive military retired pay instead of the pay table in effect at the time the court divides military retired pay. If this is the case, then the court order dividing an active duty member's military retired pay must provide us with: 1) the percentage awarded the former spouse, 2) the member's rank to be used in the calculation, and 3)the years of creditable service to be used in the calculation. We will make the hypothetical retired pay calculation using the basic pay figure from the pay table in effect at the member's retirement for the rank and years of service given in the court order, regardless of whether the member entered military service before September 8, 1980, or on or after September 8, 1980, Example 6. The following language is an example of an acceptable active duty hypothetical award based on the pay tables in effect at the member's retirement. "The;former spouse is awarded % of the disposable military retired pay the member would have received had the member retired on his actual retirement date with the rank of and with years of creditable service." (4) Examples of reserve hypothetical awards. The following are examples of acceptable reserve hypothetical awards. Example 7. The following language is acceptable for all reserve members, regardless of service entry date. 12 "The former spouse is awarded % of the disposable military retired pay the member would have received had the member become eligible to receive military retired pay with a retired pay base of $(dollar amount} and with reserve retirement points on Example 8. The following language is also acceptable for reservists who entered military service before September 8, 1980. "The former spouse is awarded % of the disposable military retired pay the member would have received had the member become eligible to receive retired pay on , with the rank of , with reserve retirement points, and with years of service for basic pay purposes." If the court order directs us to calculate a hypothetical retired pay amount using pay tables in effect at the time the member becomes eligible to receive retired pay, the court order must provide us with: 1) the percentage awarded the former spouse, 2) the member's rank to be used,3)the reserve retirement points to be used,and 4)years of service for basic pay purposes. We will make the hypothetical retired pay calculation using the basic pay figure from the pay tables in effect at the member's retirement for the rank and years of service given in the court order, regardless of whether the member entered military service before September 8, 1980, or on or after September 8, 1980. Example 9. The following language is an example of an acceptable reserve hypothetical award based on the pay tables in effect at the member's becoming eligible to receive military retired pay. "The,former.spouse is awarded % of the disposable military retired pay the member would have received had the member become eligible to receive retired pay on the date he for she] attained age 60, with the rank of , with reserve retirement points,and with years of service for basic pay purposes." E.Examples of unacceptable former spouse award language. Problems with award language usually occur when the parties are divorced prior to the member's becoming eligible to receive military retired pay. The examples given below represent common mistakes we see in court orders attempting to divide military retired pay. (1) "The former spouse is awarded one-half of the community interest in the member's military retired pay." Here, we are not told how to calculate the community interest. Nor are we provided with any of the variables necessary to make such a calculation using either a formula or hypothetical retired pay award. 13 (2) "The former spouse is awarded one-half of the member's military retirement that vested during the time of the marriage." Military retired pay is a federal entitlement, which a member either qualifies for or does not. It does not vest in any way prior to the member's retirement. As with the above example, we are not provided with any information as to how to calculate the amount of the former spouse's award. (3) "The former spouse is awarded one-half of the accrued value of the member's military retirement benefits as of the date of the divorce." This example is similar to example(2) above. As with example(2), since military retired pay is a statutory entitlement, it has no accrued value prior to the member retiring. Again, we are not provided with any information as to how to calculate the amount of the former spouse's award. (4) "The former spouse shall be entitled to 42% of the member's military retirement based on the amount he would have received had he retired as of the date of the divorce." This appears to be intended as a hypothetical award, but it does not provide us with any of the variables needed to calculate a hypothetical retired pay amount. Since we do not have access to the member's military service information, there is no practical way for us to obtain the needed information ourselves. (5) "The former spouse is awarded a portion of the member's military retired pay calculated according to the Bangs formula." Here, the court order presumes that we are familiar with that State's laws and know what the Bangs formula is. We are not able to research individual cases to resolve ambiguities in court orders. Also, the court order does not provide us with any of the necessary variables. (6) "The former spouse is awarded an amount equal to 50% of the member's disposable retired pay less the amount of the Survivor Benefit Plan Premium." The amount of the former spouse's award must be expressed either as a fixed dollar amount or as a percentage of disposable retired pay, or as an acceptable formula or hypothetical award. This award does not meet that requirement. However, if the court order awarded the former spouse 50% of the member's disposable retired pay, but then later in the order it stated that the amount of the Survivor Benefit Plan (SBP)premium would be deducted from the former spouse's share, we could honor the case at 50%. The provision concerning the SBP premium would be unenforceable since Federal law provides that the SBP premium must be deducted from the member's retired pay.43 F. Correcting deficient awards. '3 10 U.S.C. § 1452(a)(1);DoDFMR,Vol. 7B,Paragraph 450601. 14 If we are not able to determine the amount of the former spouse's award from the information provided in the court order, the former spouse has two alternatives. One alternative is for the former spouse to obtain a new court order clarifying the former spouse's retired pay as property award by expressing it in an acceptable manner. The other alternative is for the former spouse to provide us with any missing information by submitting a notarized agreement with the required information signed by both the former spouse and member. If the parties wish, they may provide us with the fixed dollar amount or percentage of disposable retired pay the former spouse is to receive. We are including our standard notarized agreement form as Appendix B of this Instruction for that purpose. The parties may want to consult their attorneys before executing any such agreement in lieu of a clarifying order. IV.AICKNOWLEDGEMENT. This handout is prepared by the Garnishment Operations Directorate, Defense Finance and Accounting Service, Cleveland Center. It may be freely circulated, but not altered without permission. Revised January 29, 2012. APPENDIX A STATE OF COURT OF COUNTY OF CASE No. 44 DoDFMR,Vol. 7B,Subparagraphs 290607.B.and 290608.E. 15 T 1 f I PETITIONER MILITARY RETIRED PAY DIVISION ORDER RESPONDENT THIS CAUSE CAME BEFORE THE UNDERSIGNED JUDGE UPON THE PETITIONER/RESPONDENT'S CLAIM FOR A DISTRIBUTION OF THE RESPONDENT/PETITIONER'S MILITARY RETIRED PAY BENEFITS. THE COURT MAKES THE FOLLOWING: FINDINGS OF FACT: 1. The Petitioner's Social Security Number is and current address is 2. The Respondent's Social Security Number is and current address is 3. The Parties were married on Their marital status was terminated on pursuant to a(n) entered in County, State of This current order is entered incident to the aforementioned order. 4. The parties were married for a period of ten or more years during which time the Petitioner/Respondent performed at least ten years of creditable military service. 5. If the military member was on active duty at the time of this order, Respondent/Petitioner's rights under the Servicemembers' Civil Relief Act, 50 U.S.0 App. 501-548 and 560-591, have been observed and honored. 6. This court has jurisdiction over the Respondent/Petitioner by reason of[choose those that apply] (A)his or her residence, other than because of military assignment, in the territorial Jurisdiction of the court, during the [divorce, dissolution, annulment, or legal separation] proceeding, (B)his or her domicile in the territorial jurisdiction of the court during the [divorce, dissolution, annulment, or legal separation] proceeding, or(C)his or her consent to the jurisdiction of the court. CONCLUSIONS OF LAW: 16 1. This court has jurisdiction over the subject matter of this action and the parties hereto. 2. Petitioner/Respondent is entitled to a portion of Respondent/Petitioner's United States military retired pay as set forth herein. IT I5 THEREFORE ORDERED THAT: [Choose and complete one of the following. Blanks in the examples represent numbers that must be provided to us in the court order. Please note that all awards expressed as a percentage of disposable retired pay, including formula hypothetical awards, will automatically include a proportionate share of the member's cost-of-living adjustments(COLAs)unless this order states otherwise. Also,hypothetical retired pay amounts will be adjusted for all retired pay COLAS from the hypothetical retirement date to the member's actual retirement date,unless this order states otherwise.] [Retired member] "The former spouse is awarded _ percent [or dollar amount per month] of the member's disposable military retired pay." [Active duty formula] "The former spouse is awarded a percentage of the member's disposable military retired pay, to be computed by multiplying 50% times a fraction, the numerator of which is months of marriage during the member's creditable military service,divided by the member's total number of months of creditable military service." [Reservist formula] "The former spouse is awarded a percentage of the member's disposable military retired pay, to be computed by multiplying 50% times a fraction, the numerator of which is reserve retirement points earned during the period of the marriage,divided by the member's total number of reserve retirement points earned." [Active duty hypothetical calculated as of time of division, for all members regardless of service entry date] "The former spouse is awarded % of the disposable military retired pay the member would have received had the member retired with a retired pay base of $ and with years of creditable service on " [Active duty hypothetical calculated as of time of division; may only be used for members entering service before 9/1/80] "The former spouse is awarded % of the disposable military retired pay the member would have received had the member retired with the rank of and with years of creditable service on " [Active duty hypothetical calculated as of member's actual retirement date "The former spouse is awarded % of the disposable military retired pay the member would have received had the member retired on his actual retirement date with the rank of and with years of creditable service." 17 [Reservist hypothetical calculated as of time of division, for all members regardless of service entry date] "The former spouse is awarded % of the disposable military retired pay the member would have received had the member become eligible to receive military retired pay with a retired pay base of$ and with reserve retirement points on " [Reservist hypothetical calculated as of time of division; may only be used for members entering service before 9/1/80] "The former spouse is awarded % of the disposable military retired pay the member would have received had the member become eligible to receive retired pay on ,with the rank of , with reserve retirement points,and with years of service for basic pay purposes." [Reservist hypothetical calculated as of the date the member becomes eligible to receive retired pay] "The former spouse is awarded % of the disposable military retired pay the member would have received had the member become eligible to receive retired pay on the date he [or she] attained age 60, with the rank of , with reserve retirement points,and with years of service for basic pay purposes." This day of , 200_. JUDGE APPENDIX B NOTARIZED STATEMENT OF THE PARTIES CLARIFYING THE COURT ORDER DIVIDING MILITARY RETIRED PAY 18 1 WE,THE UNDERSIGNED,MUTUALLY AGREE TO DIVIDE THE MILITARY RETIRED PAY,AS PROPERTY,IN THE FOLLOWING MANNER.THIS AGREEMENT CLARIFIES THE FINAL COURT ORDER ENTERED ON DATE OF COURT ORDER AND NAME/LOCATION OF COURT THE FORMER SPOUSE, IS ENTITLED TO RECEIVE: NAME OF NON-MILITARY SPOUSE % OF MEMBER'S DISPOSABLE MILITARY RETIRED PAY. PERCENTAGE OR $ PAID MONTHLY FROM THE MEMBER'S DISPOSABLE RETIRED PAY. SPECIFIC AMOUNT THE PARTIES ACKNOWLEDGE THAT THIS AGREEMENT IS IRREVOCABLE EXCEPT BY SUBSEQUENT COURT ORDER. THEY ALSO AGREE THAT THE DEFENSE FINANCE AND ACCOUNTING SERVICE (DFAS)WILL MAKE PAYMENTS DIRECTLY TO THE FORMER SPOUSE FROM THE MEMBER'S DISPOSABLE RETIRED PAY.THE PARTIES ALSO UNDERSTAND THAT COST OF LIVING INCREASES(COLAS)CAN ONLY BE MADE ON AWARDS EXPRESSED AS A PERCENTAGE. COLAS CANNOT BE MADE ON AWARDS EXPRESSED AS A SPECIFIC AMOUNT. MEMBER FORMER SPOUSE MEMBER'S SOCIAL SECURITY NUMBER: BEFORE ME APPEARED, AND SHOWING PROOF OF IDENTIFICATION(BY DRIVER'S LICENSE/GOVERNMENT/MILITARY ID) AND SIGNED HIS/HER NAME AT THE PLACE INDICATED ABOVE. 19 SWORN BEFORE ME THIS DAY OF NOTARY PUBLIC BEFORE ME APPEARED, AND SHOWING PROOF OF IDENTIFICATION(BY DRIVER'S LICENSE/GOVERNMENT/MILITARY ID) AND SIGNED HIS/HER NAME AT THE PLACE INDICATED ABOVE. SWORN BEFORE ME THIS DAY OF NOTARY PUBLIC 20 WILBUR R. GORDON, JR., Plaintiff/Respondent V. IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT SHANNE L. GORDON-LIBERATOR 2004-04810 CIVIL TERM Defendant/Petitioner IN DIVORCE IN RE: PETITION FOR DIVISION OF MILITARY RETIREMENT PLAN ORDER OF COURT AND NOW, this 3rd day of May 2013, upon consideration of the Defendant's petition and Plaintiff's answer with counter-claim, a hearing is scheduled for Thursday, 23 May 2013 at 1:30 p.m. in Courtroom No. 6 of the Cumberland County Courthouse, Carlisle, Pennsylvania. The parties are each given one half hour to present and cross examine the evidence they deem pertinent for a court's decision. BY THE COURT, Thomas A. Placey C.P.J. Distribution: arl E. Rominger, Esq. h resa Barrett Male, Esq.4 =M 3� 1 2,:�o v,r-- f a acs. �ar1 WILBUR R. GORDON, JR., SAM Plaintiff/Respondent (9010 v. IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT SHANNE L. GORDON-LIBERATOR 2004-04810 CIVIL TERM f/k/a SHANNE L. GORDON Defendant/Petitioner IN DIVORCE IN RE: MILITARY RETIRED PAY DIVISION ORDER ORDER OF COURT AND NOW, this 17th day of July 2013, upon consideration of the Defendant's Petition for Division of Military Pay and following a hearing, it is ORDERED and DECREED that Defendant Shanne L. Gordon-Liberator, formerly known as, Shanne L. Gordon, is awarded thirty (30%) percent of the disposable retired military pay of military member Plaintiff Wilbur R. Gordon, Jr. This award is calculated upon Wilbur R. Gordon, Jr., retirement pay at the military rank of an E6 or as of 28 December 2007, whichever is higher at the time of the Divorce Decree. Shanne L. Gordon-Liberator is entitled to all other stated benefits as determined by the Defense Finance and Accounting Service (DFAS), COURT, Thomas V-Piacey Cfi,-D. :zm C= Distribution: ✓Karl E. Rominger, Esq. /Theresa Barrett Male, Esq. > 0 WILBUR R. GORDON, JR. IN THE COURT OF COMMON PLEAS PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA vs. SHANNE L. GORDON NO. 2004-4810 DEFENDANT ENTRY OF APPEARANCE AS A SELF-REPRESENTED PARTY 1. I am the ® Plaintiff ❑ Defendant in the above-captioned (MARK ONE) ❑ custody, ® divorce, ❑ support, ❑ protection from abuse, ❑ paternity case. 2. ® This(MARK ONE) ❑ is ❑ is not a new case and I am representing myself in this case and have decided not to hire an attorney to represent me. OR(check only one box) ❑ This is NOT a new case and vioy r r ;..._, (Name of Attorney) = "'0 '0 -,. represented me in this case. I have decided not to be represented by that attorney and direct the Protrary8e' -: remove that attorney as my counsel of record in this case. = —4t. = I have provided a copy of this form to that attorney listed above at the following address: f. 3>= ,_ ---4 Cr4 ..,.., -..< OR(check only one box) f ® I am entering my appearance as a self-represented party(sign) / My attorney acknowled er withdrawa s my attorne i this case. / (Attorney signature) /� #'1-- / �kit_. , Esq. 3. My address for the purpose of receiving all future pleadings and other legal notices is: 525 Weaver Avenue, Chambersburq, PA 17201. I understand that this address will be the only address to which notices and pleadings in this case will be sent, and that I am responsible to regularly check my mail at this address to ensure that I do not miss important deadlines or proceedings. ® This is my home address. ❑ This is not my home address. 4. My telephone number where I can be reached during normal business hours (8:00 a.m.—4:30 p.m. Monday—Friday) is 717-440-1920. My email address is gordonw10(a�comcast.net. ❑ My telephone number and email address are confidential pursuant to a Protection From Abuse Order. 5. I UNDERSTAND I MUST FILE A NEW FORM EVERY TIME MY ADDRESS OR TELEPHONE NUMBER CHANGES. 6. I have provided a copy of this form to all other attorneys or other self-represented parties at the following addresses listed below: (Use reverse side if you need more space). Name: Karl E. Rominger, Esquire Address 155 South Hanover Street, Carlisle, PA 17013 Name Address 7. I fully understand that by deciding to represent myself,the Court will hold me to the same standards of knowledge regarding the statutory law, evidence law, Local and State Rules of Procedure and applicable case law as a Pennsylvania licensed attorney, and that I must be fully prepared to meet those responsibilities. I verify that the statements made in this Entry of Appearance as a Self-Represented Party are true and correct. I understand that if I make false statements herein, that I am subject to the criminal penalties of 18 Pa.C.S.§4904 relating to unsworn falsification to authoritie i h c re ult' 4 fine and/or prison term. Da e Signature (Your igna re) j 1 _ H(i illy Wilbur R. Gordon, Jr., ;, : IN THE COURT OF COMMON PLEAS Plaintiff/Resp'dn ht- I PH I?: s t : CUMBERLAND COUNTY, CUMEJERI r ,;._ 4. PENNSYLVANIA PENNSYLVANIA" � v. : NO: 2004 - 4810 Shanne L. Gordon, : CIVIL ACTION-LAW Defendant/ Petitioner : IN DIVORCE MILITARY RETIRED PAY DIVISION ORDER PETITION FOR DIVISION OF MILITARY RETIREMENT PAY AND NOW comes Shanne L. Gordon, Defendant by and through her counsel Karl E. Rominger, Esquire and Rominger & Associates upon her claim for a distribution of the Respondent's Military Retirement Pay Benefits and avers the following in support thereof: 1. The Petitioner's current address is 331 Brick Church Road, Newville, Pennsylvania 17241. 2. The Respondent was at the rank of E6 when he retired from United States military service and his current address is 3. The parties Property Settlement and Separation Agreement paragraph #6 on pages 3-4 states the following: "By Domestic Relations Order prepared by Wife's counsel, Husband will transfer to Wife 30% of his disposable retired military pay." 5. In the interest of judicial economy, this Petition for Division of Military Retirement Pay will resolve one of the main pending issues before the Court by compelling Plaintiff to arrange with the Defense Finance and Accounting Service (DFAS) a direct deposit equal to 30% of the gross pay (the Defendant's portion) into her financial institution. The DFAS requires a Court Order for the division of the Plaintiff's Military Retirement Pay to a targeted account not owned by the Retiree (Wilbur Gordon). 6. Plaintiff/Respondent is not currently on active military duty. 7. This Court has jurisdiction over the Plaintiff/Respondent by reason of his residence, other than military assignment, in the territorial jurisdiction of the Court, during the divorce. 8. Plaintiff/Respondent has refused to setup with DFAS the direct deposit into Petitioner's account. 9. Defendant/Petitioner is entitled to 30% of the Plaintiff/Respondent's United States military retired pay set forth herein. 10. Plaintiff unilaterally stopped paying the Defendant on or about November, 2011, and such issue was discussed at the most recent hearing before the Court on May 23, 2013, but the Court's July 17, 2013 Order does not address payment of arrearages to Defendant. WHEREFORE, Defendant through and by her Counsel Karl E. Rominger request the Court enter an Order that complies with the DFAS requirements of stating the Court's jurisdiction over the parties, and the 30% division of the Plaintiff's disposable retirement pay. Moreover, Defendant requests the Court address the arrearage issue and enter an Order for Plaintiff to pay Defendant accordingly. Respectfully submitted, ROMINGER & ASSOCIATES Date: October 1, 2013 Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Defendant Wilbur R. Gordon, Jr., : IN THE COURT OF COMMON PLEAS Plaintiff/Respondent : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO: 2004 - 4810 Shanne L. Gordon, : CIVIL ACTION—LAW Defendant/Petitioner : IN DIVORCE MILITARY RETIRED PAY DIVISION ORDER ATTORNEY VERIFICATION Karl E. Rominger, Esquire, states that he is the attorney for, Petitioner, Shanne L. Gordon, in this action; that he makes this affidavit as attorney because he has sufficient knowledge or information and belief, based upon his investigation of the matters averred or denied in the foregoing document; and that this statement is made subject to the penalties of 18 Pa. C.S. Pa.C.S. §4904, relating to unsworn falsification to authorities. ROMINGER & ASSOCIATES Date: October 1, 2013 Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Defendant Wilbur R. Gordon, Jr., : IN THE COURT OF COMMON PLEAS Plaintiff/Respondent : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO: 2004 - 4810 Shanne L. Gordon, : CIVIL ACTION— LAW Defendant/ Petitioner : IN DIVORCE MILITARY RETIRED PAY DIVISION ORDER CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire, attorney for Defendant/Petitioner do hereby certify that I this day mailed a copy of the within Petition for Division of Military Retirement Pay upon the following by depositing same in the United States mail, postage prepaid, at Carlisle, Pennsylvania, addressed as follows: Wilbur R. Gordon, Jr. 525 Weaver Avenue Chambersburg, PA 17201 ROMINGER & ASSOCIATES Date: October 1, 2013 Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, PA 17013 (717) 241-6070 Supreme Court ID # 81924 Attorney for Defendant � 1r,2 II I iI of fen �i U WILBUR R. GORDON, JR., � u, Plaintiff/Respondents-r � wry_:'/114, IN THE COURT OF COMMON PLEAS v. OF THE NINTH JUDICIAL DISTRICT 2004-04810 CIVIL TERM SHANNE L. GORDON, Defendant/Petitioner IN DIVORCE IN RE: PETITION FOR DIVISION OF MILITARY RETIREMENT PAY ORDER OF COURT AND NOW, this 10th day of October 2013, upon consideration of Petitioner's Petition for Division of Military Retirement Pay, and it appearing that a modification conference is scheduled for 21 October 2013 at 10:00am, the request for a Conference between the parties to be held in Chambers to discuss the arrearage issue is DENIED. The parties may resubmit the request if the issues cannot be resolved at the modification conference. BY THE COURT, Thomas A. Placey C.P.J. Distribution List: ./ Karl E. Rominger, Esq. wilbur R. Gordon, Jr. eor,.es P2.1.‘,1:ccL ' kyia/!3 Wilbur R. Gordon, Jr., : IN THE COURT OF COMMON PLEAS Plaintiff/Respondent : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO: 2004 - 4810 Shanne L. Gordon, : CIVIL ACTION—LAW Defendant/Petitioner : IN DIVORCE MILITARY RETIRED PAY DIVISION ORDER MILITARY RETIRED PAY DIVISION ORDER OF COURT AND NOW, the 1 O day of O , 2013 in accordance with the September 11, 2007 Property Settlement and Separation Agreement and subsequent Divorce Decree this Court has jurisdiction over the Plaintiff/Respondent by reason of his residence, other than military assignment, in the territorial jurisdiction of the Court, during the divorce. It is ORDERED and DECREED that Defendant Shanne L. Gordon-Liberator, formerly known as. Shanne L. Gordon, is awarded thirty (30%) percent of the disposable retired military pay of military member Plaintiff Wilbur R. Gordon, Jr. This Award is calculated upon Wilbur R. Gordon, Jr., retirement pay the military rank of an E6 or as of 28, December 2007, whichever is higher at the time of the Divorce Decree. Shanne L. Gordon-Liberator is entitled to all other stated benefits as determined by the Defense Finale aiikiccounting Service (DFAS). COURT I J. t a Distribution: Thomas & Natty Karl E .Rominger, Esquire Common Pleat Ju gb Wilbur R. Gordon, Jr.